Should the court force Virgin Media to disclose the names and addresses of tens of thousands of residential broadband subscribers who are accused of downloading explicit pornographic films? That is the question which is considered by the court in a decision handed down yesterday.

The applicants were made up of various businesses in the porn industry, including film production companies. The applicants sought an order known as a "Norwich Pharmacal" in which an innocent intermediary (such as an ISP) becomes mixed up in the wrongdoing of others, in this case the downloading of porn in breach of the copyright in the films.

Such applications have been made before. The last reported case, in 2012, involved companies such as "Golden Eye", "Ben Dover", "Easy on the Eye", "Sweetmeats" and "One Eyed Jack". The soon to be Lord Justice Arnold granted (in part) those applications, ordering O2 to disclose the names and addresses of its customers who had infringed the applicants' copyright. This is despite evidence that the companies intended only to send threatening letters seeking inflated damages for copyright infringement, relying on the likely embarrassment of the recipients to force them into coughing up. 

This time round, the applications were dismissed. While Virgin accused the applicants of orchestrating a "shakedown" of people who had shared copyright porn films over P2P platforms, the applicants actually failed due to the poor state of the evidence, suggesting that if the applicants 'do better next time' the applications will be granted.

The case also involves some interesting findings on data protection law and the effect of the GDPR / DPA 2018. In particular, it involved a discussion on the distinction between "data controllers" and "recipients", especially in the context of legal proceedings.