Voltage Pictures' ‘Reverse Class Action' Threatens Canadians' Privacy: Michael Geist

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A proposed “reverse class action” lawsuit by a Hollywood film production company risks “further erosion of Internet privacy in Canada,” a leading expert warns.

Voltage Pictures filed an application in the Federal Court earlier this year, requesting the right to file a “reverse class action” against an unknown number of Canadians who allegedly shared Voltage movies without authorization.

Voltage is suing over file-sharing of five of its movies, according to a report at Torrentfreak: “American Heist,” “The Cobbler,” “Fathers and Daughters,” “Good Kill” and “Pay the Ghost.”

good kill
Actor Ethan Hawke in Voltage Pictures' "American Heist," one of five movies at the centre of a proposed reverse class action lawsuit against Canadian file-sharers. (Photo: Voltage Pictures/YouTube screencap)

In a typical class-action suit, numerous plaintiffs (often consumers) sue a single defendant (often companies). In a reverse suit, a single plaintiff (in this case Voltage) sues numerous defendants (in this case, alleged Canadian file-sharers).

It’s unknown how many Canadians could be targeted in the reverse class action, but the number is likely to be in the thousands.

A previous court case involving Voltage and Ontario-based Internet provider TekSavvy involved some 2,000 alleged file-sharers, and that was limited to customers of that one provider.

In this instance, Voltage is asking the courts to identify a single customer of Rogers — an Internet subscriber identified in court documents only as “John Doe #1” — that it wants named as the lead defendant in the suit.

"I think to date rightsholders' interests have been ignored.”
— Voltage lawyer James Zibarras, 2015

According to University of Ottawa professor Michael Geist, Rogers is contesting the request on privacy grounds.

In a column for the Toronto Star published Monday, Geist warned that if Voltage succeeds, it could lead to “further erosion” of Canadians’ privacy rights, and would undermine the consumer protections in Canada’s recently enacted copyright law.

Under the “notice-and-notice” copyright law crafted by the previous federal Conservative government, copyright owners like Voltage send infringement notices to internet providers, who pass them on to the accused file-sharer. The ISP does not identify the customer to the copyright owner.

In a court case last year, Voltage succeeded in weakening that consumer protection a little, with a court ruling that TekSavvy has to identify some 2,000 alleged file-sharers to the film production company.

But the court also ruled TekSavvy would have to have its correspondence with those alleged file-sharers cleared by courts beforehand “in order to ensure there is no inappropriate language in any demand letter sent to the alleged infringers.”

"One of the last remaining benefits of an already imperfect system will be lost."
— University of Ottawa professor Michael Geist

If Voltage’s reverse suit succeeds, “one of the last remaining benefits of an already imperfect system will be lost,” wrote Geist, who holds the University of Ottawa's Canada Research Chair in Internet and E-Commerce law.

Voltage has argued previously that Canada’s copyright laws are too protective of consumers.

"I think to date rightsholders' interests have been ignored,” Voltage lawyer James Zibarras said last year, following the company’s victory in the TekSavvy case.

"Obviously the public has almost become accustomed to downloading movies for free and it's being done on a massive scale. And of course the public loves justifying what they're doing and when someone tries to stop it they invariably want to come up with arguments as to why it should not be stopped."

Some consumer advocates argue there is no need to give copyright holders more power to enforce their laws, because the “notice-and-notice” system is working. They note there has been a large drop in file-sharing in Canada since internet providers started sending out infringement letters on behalf of copyright holders.

— With a file from The Canadian Press

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