Dallas Buyers Club suit a legal minefield

Dallas Buyers Club starring Jared Leto (left) and Matthew McConaughey. All eyes are on Hollywood studio Voltage Pictures for its first lawsuit against Internet users in Singapore for illegally sharing its film Dallas Buyers Club. -- PHOTO: SHAW
Dallas Buyers Club starring Jared Leto (left) and Matthew McConaughey. All eyes are on Hollywood studio Voltage Pictures for its first lawsuit against Internet users in Singapore for illegally sharing its film Dallas Buyers Club. -- PHOTO: SHAW

ALL eyes are on Hollywood studio Voltage Pictures for its first lawsuit against Internet users in Singapore for illegally sharing its film Dallas Buyers Club.

The last time users' hearts skipped a beat over a similar issue was in 2007, when local anime distributor Odex went after hundreds of illegal downloaders and took a few individuals to court.

But because all the Odex cases were eventually settled out of court, there is no legal precedent to answer the question of whether broadband subscribers in Singapore are liable for acts committed on their Internet accounts.

"This is all fairly new ground, like the Internet," said lawyer Bryan Tan, a technology partner at Pinsent Masons MPillay.

But Voltage's case against Singapore's illegal downloaders has already generated heated discussion on social media.

There are many unanswered questions and there are also concerns that the lawyers acting on behalf of Voltage may have overstepped their ethical boundaries.

  • Is there a need to establish a link between an impugned Internet account and the actual downloader?

Early last month, Voltage's Singapore representative, Samuel Seow Law Corporation, sent 77 M1 subscribers letters demanding a written offer of damages, failing which they ran the risk of being sued. More letters are expected to be sent to Singtel and StarHub subscribers.

The studio identified more than 500 Singapore Internet protocol (IP) addresses - of Singtel, StarHub and M1 subscribers - at which the movie was allegedly downloaded.

It filed "pre-action discovery" applications against the three Internet service providers (ISPs) in the High Court late last year, and succeeded in compelling the ISPs to release their customers' details.

The issue here is that the demand letter is addressed to the Internet subscriber, who may not be the one who allegedly infringed on the copyright.

This has sparked a heated discussion online over whether the ISPs' lawyers or the courts should have demanded more proof to link the person who infringed copyright to the impugned Internet account.

Subscribers who were wrongfully threatened with a demand letter could mount a lawsuit against Voltage for making groundless threats, but how many can afford to do so?

  • Are lawyers allowed to threaten downloaders with the possibility of criminal proceedings to further civil claims?

Demand letters sent out by Samuel Seow Law Corp hinted at the possibility of criminal sanction under sections 136(3) and 136(3A) of the Copyright Act.

The letters, seen by The Straits Times, spelt out a maximum fine of $50,000 or imprisonment not exceeding three years, or both, under Section 136(3) of the Act. It also specified a maximum fine of $20,000 or a maximum jail term of six months, or both, under Section 136(3A) of the Act.

However, the Law Society's Practice Directions and Rulings 1989 states: "It is improper for a solicitor to communicate in writing or otherwise a threat of criminal proceedings in order to achieve a stated objective in any circumstance."

The directions are a set of ethical guidelines for lawyers.

Mr Harish Pillay, president of the Internet Society (Singapore), said criminal threats should not be used to further civil claims.

"While there was some cagey wording to suggest that criminal sanction 'may' apply, there is a lot of text detailing and emphasising it," he said.

"The majority of people reading the letters are your 'man in the street'. They would not know any better and would think that the threats are legitimate."

When contacted, the Law Society said it has not received any complaints against Samuel Seow Law Corp but urged the Internet Society to report any complaints against any lawyers.

"No one should use the threat of criminal proceedings in order to settle a civil dispute... Complaints will be thoroughly investigated, in accordance with statutory procedure," a Law Society spokesman told The Straits Times.

  • Why didn't the courts supervise the drafting and issuing of demand letters?

Since so many Internet users are involved, some have asked why the Singapore courts did not supervise the drafting and issuing of demand letters.

They drew comparisons with Australia, where Voltage is also going after Internet users for illegally downloading the Dallas Buyers Club movie. There, demand letters have to be issued to Internet users under Australian court supervision. This is to ensure that exorbitant settlement fees would not be sought.

Court supervision here could also protect end-users in similar ways.

Mr Pillay said the Singapore courts are entitled to impose conditions such as supervising demand letters. "But lawyers for the ISPs need to ask for it... We think this could have been asked for," he said.

When contacted, Singtel, StarHub and M1 declined to comment on whether they had asked for court supervision to protect their subscribers.

  • How much of a fight did the ISPs put up to protect customer details?

The three ISPs, when asked, did not explain in detail how they resisted Samuel Seow Law Corp's demands in court. Court documents are also not available for public inspection.

Consumers Association of Singapore executive director Seah Seng Choon said consumers should be informed of what was done to protect their interests.

"Consumers in a highly competitive broadband market may want to exercise their choice of ISPs based on how much the service providers are willing to do to protect them," he said.

In a document seen by The Straits Times, one of the ISPs' lawyers had asked for "security for costs" - a potential deterrent.

Security for costs, which companies like Voltage might have to pay for if defence lawyers ask for it, is usually provided through a banker's guarantee.

Lawyers usually request it when the firm filing the lawsuit is not based in Singapore, and the defendants want to ensure their legal costs are covered if the plaintiff loses the suit.

  • Did Voltage intend to sue Internet users at all?

When The Straits Times last checked with the courts early this month, no individual had been served a writ of summons.

It may still be early days but it would be an uphill task to sue so many individuals. One of the major hurdles is security for costs.

If Internet users were sued in Singapore, their lawyers could ask for security for costs as Voltage is a foreign company.

"The security for costs sought could potentially run into the millions if a substantial number of defendants decide to pursue such applications," saidHolborn Law's disputes lawyer and director Lakshanthi Fernando.

Also, very few copyright holders go after end-users for fear of the public relations nightmare that might ensue.

For instance, Odex director Stephen Sing was flamed online and threatened soon after

the firm targeted downloaders. Anti-Odex online campaigns followed.

An association of content owners, which declined to be named, said suing end-users was akin to activating nuclear weapons.

It said: "We have nuclear weapons in modern-day warfare, just like there are many options to counter online piracy, but we don't use them."

itham@sph.com.sg