Two solicitors accused over file-sharing ‘bully tactics’
The Solicitors Regulation Authority has referred two solicitors from London firm Davenport Lyons to the Solicitors Disciplinary Tribunal over claims that the firm sent ‘bullying’ letters accusing hundreds of people of illegal file-sharing.
Consumer group Which? complained to the SRA in 2008 that Davenport Lyons partner David Gore and former partner Brian Miller had engaged in ‘bullying’ and ‘excessive’ conduct, while acting on behalf of client copyright holders.
It said the firm had sent out hundreds of letters, demanding compensation and costs for copyright infringements, and threatening court action.
Deborah Prince, head of legal affairs at Which?, said: ‘We’re pleased to see some action at last from the SRA and hope the tide is finally turning in favour of consumers. We want to see some decisive action to stop these bully-boy tactics.
‘Had the SRA decided not to pursue our complaint, its decision would have been very serious for the regulation of the legal profession,’ she added.
Mark Stephens, a partner at Stephens Finers Innocent who is representing the two solicitors involved, rejected the consumer group’s allegations. He said Davenport Lyons has a long tradition of protecting the rights of creators, and its methodology for handling illegal file-sharing cases conforms to industry best practice, and has been adopted in the Digital Economy Bill currently going through parliament.
Stephens said it was not correct to say the solicitors’ conduct was inappropriate in the manner alleged by Which?, adding that Davenport Lyons has a 100% success rate for the illegal file-sharing cases that it has taken to court.
Stephens accepted that there was a ‘small concern’ regarding the information provided by the internet service provider, which Davenport Lyons had relied on. In a few cases, he said the ISP had wrongly identified the people involved. But once the error was discovered, the cases against them were not pursued.
There were also a number of people who had left their computers in an insecure state and third parties had gained control over them. Again, said Stephens, these people were subsequently not pursued.
The SDT will now examine the complaint to determine whether there is a case to answer. If it finds that there is, the tribunal will hear the case later in the year.
Davenport Lyons declined to comment.
Comments
Threats
"Deborah Prince, head of legal affairs at Which?, said: ‘We’re pleased to see some action at last from the SRA and hope the tide is finally turning in favour of consumers. We want to see some decisive action to stop these bully-boy tactics.
‘Had the SRA decided not to pursue our complaint, its decision would have been very serious for the regulation of the legal profession,’ she added."
I am staggered by this arrogance and the none too subtle threat contained in Ms Prince's comment. She is effectively saying that if the SRA had not made this reference, then the LSB and its consumer panel would have been brought into play.
It not for Ms Prince to dictate how we deal with disciplinary matters.
She seems blithely unaware of the fact that the SRA Board is not supposed to be involved in any individual case and that it is up to adjudicators to make references to the SDT. If I was Mr Stephens, I would be asking for full disclosure of any SRA Board response or LSB response or LSB Consumer Panel response to Ms Prince's entreaties, with a view to bringing a judicial review, if it transpires that she has received any assurances whatsoever.
Talking about bully boy tactics, I would welcome Ms Prince's comments on Tescos continued practise of sacking people who exceed a certain % of sickness time, despite production of sick notes. In addition, I would like her to comment on Tescos institution of disciplinary proceedings for absence against persons covered by the Disability Discrimination Act 2005. I am sure she knows a lot about these subjects, having, herself, been head of commercial and corporate law at Tesco between 2000 and 2006.
Which? are on the wrong side...
Reducing on-line piracy is a noble cause for which the creative industries are grateful. Davenport Lyons has come up against resistance, as they are taking away what is effectively unlimited media and content which many have enjoyed for years. I find it ironic that Which?, a consumer organisation, is acting against the interests of consumers by preventing law firms such as Davenport Lyons from discouraging piracy. The success of such anti-piracy campaigns would, in the long term, result in lower prices for consumers and more investment at a grass roots level for new talent.
As a profit making business (Which? are not a charity), I am sure that they would be up in arms if their content was made available on unlawful file sharing networks without permission and for free. Perhaps they might even consider instructing Davenport Lyons to deal with the problem.
If solicitors were not able to write threatening letters then we would all be out of a job very quickly. Shame on Ms Prince for bringing our profession into disrepute and good luck to Brian Miller and David Gore.
When will you learn?
"Taking away free content"?! What irrelevant nonsense. When will you learn that the issue here is the fallibility of the evidence ("‘small concern’ regarding the information provided by the internet service provider" Ha! ) and the disregard for the CDPA 1988, where evidence that a person has AUTHORISED the infringement is required!?
For solicitors you're clearly not very quick on the uptake.
Tracing an infringement to an actual person is too difficult for you, so you write letters demanding money (offering a compromise my ****) to the account owner who, it is admitted in the correspondence, probably didn't even commit or authorise the (SINGLE) infringement. Your tactics make it clear that you do not care. This is morally reprehensible and utterly unethical. The BPI, as well as several Lords have said as much. You are an utter disgrace to the creative industries.
Furthermore, the fact people are resorting to personal smears at Which? and the solicitor in question clearly shows that they have no real valid, pertinent arguments to justify this behaviour. Well done.
A detailed investigation is called for
A detailed investigation is called for. How many members of the public do DL (and others) send 'compromise offers' to? How many cases do they drop, how many do they persue through the courts. What happens to the rest?
Ask for *specific* figures. Do not accept obfuscation. "100% success rate for the illegal file-sharing cases that it has taken to court" while technically true is grossly misleading.
My understanding is they took 1 case to court, out of thousands of letters?
How dare you?
Interesting that the person who wrote this garbage "If solicitors were not able to write threatening letters then we would all be out of a job very quickly." remained anonymous. Noone else in society writes threatening letters. Who on earth thinks that their job is worth threatening innocent people. Check your law - these people are INNOCENT until proven guilty.
No wonders ambulance chasing lawyers like ACS Law, Davenport Lyons and Tilly, Bailey, Irvine are described in the House of Lords as in "the Hall of Infamy"
The Principle
It is up to the courts to decide whether or not the actions of a solicitor is unlawful, not up to "Which?" magazine.
If you have a legitimate claim of harrassment or even blackmail, then take it to the Police or bring a civil action.
If the solicitor in question acted within the law, then he should not be subject to sanction by the SRA or SDT.
The solicitor represents his client and his duty is to his client. If his client's legal rights are being infringed, then he has an absolute right, indeed a duty, to follow his client's instructions, in relation to that client's legal rights. If someone infringes someone else's rights then the infringer has to watch out.
If I borrowed your car, without your permission, instead of your computer program, then I would face the law and I would not expect "Which?" to support me.
The principle at issue is whether or not solicitors are able to use the full panoply of the law to assist their client or whether their actions are to be governed by what is seen to be politically acceptable or politically correct.
The Solicitors of England and Wales have given up their independence and now face the sort of interference brought to bear by Ms Prince. They have so badly neglected the modernisation of their disciplinary processes, that there are huge "catch all" offences under which solicitiors can be tried. If the SDT is so inclined, then they can stop solicitors pursuing lawful means of recovery on behalf of their clients. If they do this, then they are implying a duty to the other side, which has not, hitherto, existed in English and Welsh legal practise.We have also left in place terrifying sanctions, such as intervention, which can be used against us. We can be ruined the SRA or SDT.
I have dealt with the SRA in the past and they never, never give an inch. They never inform those they are prosecuting of cases or legislation which would help them. They never back off, yet they seem to be suggesting that these acccused partners should have done so.
Interesting that there is no prosecution of those solicitors issuing letters to suspected shoplifters banning them from stores and demanding £200.00 or thereabouts in costs, merely a warning. Has Ms Prince and "Which?" commented on this?
The truth is that solicitors have given up their powers and can do nothing about this. They are at the mercy of the SRA and those, such as Ms Prince, who control the SRA and are subject to sanction, if they do not follow the latest politically correct nostrum, regardless of the law.
Democracy has been dumped in favour of rule by outsiders who can impose whatever ridiculous ideas they like upon us.
We are no longer a profession.
Is this a press release for DL?
"Davenport Lyons has a 100% success rate for the illegal file-sharing cases that it has taken to court."
So, exactly how many is that please?
One case, default judgement
Doesn't count.
@ "The Principle"
You say that "If I borrowed your car, without your permission, instead of your computer program, then I would face the law and I would not expect "Which?" to support me."
Please explain what you would do if you had *not* borrowed my car, but I had employed aggressive lawyers to bully you anyway?
Car Metaphor Continued
If I knew the car had stolen from a garage when parked up after service and the garage told me that you had been seen to enter the car, when the car was parked up after service and then the garage had not seen it after that, then there would be enough reasonable suspicion for you to be arrested on suspicion of taking the car without consent and vehicle interference. You would probably be charged with the latter.
If I know you have visited a file sharing website, then I want to know why and how long you stayed on it and crucially whether you downloaded anything belonging to my client. If I cannot prove the latter action then you have nothing to worry about but it may cost you the civil equivalent of a few hours in the cells, which is a letter before action, because you visited such a site.
"If I knew you had visited a file sharing website"
That is the point. Neither you, nor any else knows that. THE ONLY thing they know is that the ISP had given an IP address which is linked to file sharing to ANY computer on that subscriber line at the time of the problem. They don't know that unauthorised access wasn't the problem, or IP spoofing or a friend or family member.
Maybe stick to the law because you know jack-all about computers.
"If I know you have visited a
"If I know you have visited a file sharing website, then I want to know why and how long you stayed on it..."
Yeah, there's your problem see? You want an omnipotent power of intrusion, which makes us angry. Ordinary web users will be forced to defend the pirates if it's a choice between that and your Orwellian surveillance.
Orwell
You seem to have a bit of a problem understanding the concept of private property. Let me make it easy for you. If I broke into your house and took all your stuff, you would run to the Police and ask them to search my house.You would not expect them to say they cannot come to my house because it is an Orwellian intrusion.
Vigilante thugs
But this is not running to the police after a break-in, this is equivalent to hiring a mob of vigilante thugs to break and enter into the house of someone you suspect of stealing your £20 watch. Protection of private property (even the real, physical kind) is not an excuse to start a protection racket.
The Rule of Law
Absolute tripe. Since when have vigilante thugs sent round letters asking for money and then done nothing when the letters are ignored. If you are truly innocent then you just ignore the letters and the solicitors do nothing. They cannot do anything. The only reason that people are so worked up about this is that they have been on file sharing sites and shared files which belong to other people and they are worried that they have been found out. Their answer is not to face the accusation but to run and hide behind "Which?" and the SRA. That is what the rule of law has come to in this country? It is a crying shame and a total disgrace.
PS The clue is in the word vigilante. Vigilantes respond to crimes committed against them. They also act unlawfully. These two accused persons have not acted unlawfully.
I'm the one suppoting the rule of law. You're the one opposing
I see. So anyone who seeks to challenge an accusation is automatically guilty. In that case, we should automatically find people guilty if they dare to plead "not guilty" in court, and not even look at the evidence, because it doesn't really matter if people are innocent or guilty.
You are the one opposing the rule of law because you appear to be supporting the right of people to send speculative demands for payment in the hope that some innocent people will think it's easier to settle than face a potentially costly legal battle to prove their innocence. In a rule-of-law society people do not send legal threats on such flimsy evidence.
To close to the Truth
I guess my previous comment was removed as I hit the nail on the head of WHO wrote some of the comments.
THIS is NOT about Solicitors defending the rights of their clients, this is about a Law Firm that has made spurious accusations based on a non disclosed system and based on obscure Software titles and music, and finally vile Pornography that leaves people to embarrassed to fight the accusations or as one Solicitior laughed when I approached him regarding this, "They have levelled this about right £500 is what it would cost minimum to defend the case"
It is an injustice that needs stopping, and I do take the point of the letters sent to supsected Shoplifters that would need to stop as well. IF their is evidence then take it to court of drop the case, but dont leave it in the air for SIX years, as ACS LAW have said they will do
Unlawful Actions
What is this about vile pornography? Is it unlawful pornography? Because if it is then the correct way of dealing with it is to report it to the Police. It seems to me that the City of London Police should be attending this SDT hearing (if there is one), to check if the pornography mentioned was unlawful.
If unlawful pornography was downloaded then this is not a matter for the SRA or SDT or "Which?", It is a matter for the Police.
I trust that the SRA will take note.
re: Unlawful
"If unlawful pornography was downloaded then this is not a matter for the SRA or SDT or "Which?", It is a matter for the Police."
Are you missing the point by an inch or a mile?
1. the innocent people didn't download this stuff - whether lawful or not.
2. The origins of the many many complaints raised with the SRA are not against the alleged downloaders but against the tactics employed by the members of this most illustrious profession
By all means, have the police in attendance - can you clap a solicitor in handcuffs in an SRA hearing? maybe for contempt? because I hold the whole of this sorry sordid business in contempt.
Especially when blatant advertising comments are posted which portray the duo as noble heroes fighting against the scourge of piracy for no personal benefit.
Vile
Besides you missing one point, the use "Vile" is opinion. Not everything vile is illegal idiot. Lawyers like Tilly, Bailey, Irvine will be thought of as "vile" by many people but sadly, they are not illegal.
Actually at least one person
Actually at least one person has gone to the police expressing concern that someone was apparently distributing extreme porn in a criminal manner over their connection.
Their response? Not interested. With the "evidence" presented it is impossible to pursue a named individual for the offence.
Says it all, really.
100% success rate
As I understand it, the 100% success rate refers to a single case Davenport took to court where the defendant didn't appear and they won by default.
Shocking
Interesting read here:
http://www.techdirt.com/blog.php?company=digiprotect
Guilty as charged
I find it difficult to believe that a court would order the release of names and addresses unless it was satisfied that a prima facie case existed against the internet connection holder. This is the precise reason for which we have a separation of powers. It is most probable that the systems used to detect the copyright infringements were subject to a court certified report which was examined by a judge and deemed to have been acceptable. Any other technical arguments made here are therefore irrelevant.
Those protecting the "innocent" are likely net neutrality evangelists who have no concern for the property of others, unable to accept that the right to property forms an intrinsic part of our society today. The illegal distribution of copyrighted material without permission is theft and those carrying out such acts must be punished to prevent the deterioration of our creative industries.
It is reassuring to see that the pair have world class legal representation from Mark Stephens. I wish them all the best in preventing this massive injustice.
You are wrong!
You say that "The illegal distribution of copyrighted material without permission is theft". You are clearly not a lawyer, since that is completely wrong. Theft is defined in the Theft Act 1968 as the "dishonest appropriation of property belonging to another with the intention permanently to deprive them of the benefit of it".
There are therefore five elements required for theft - three actus reus (appropriation, property, belonging to another), and two mens rea (dishonest, intention permanently to deprive). Downloading files might just meet the actus reus, but any lawyer would stumble at showing the relevant mens rea. First of all, proving an intention permanently to deprive would be all but impossible, because the actual property is not diminished in any way by the downloading. Secondly, dishonesty is assessed by the two-part test in Ghosh: i) would the reasonable person regard the appropriation as dishonest? If yes, ii) did the accused realise that they were acting dishonestly? In most file-sharing cases, that would be fatal to the prosecution.
Finally, to complete your education, so you won't have to spout your ignorance again, copyright infringement is a civil offence, not a crime, hence the "acceptability" of the bullying tactics used by win-at-all-costs lawyers.
Guilty as charged
I find it difficult to believe that a court would order the release of names and addresses unless it was satisfied that a prima facie case existed against the internet connection holder. This is the precise reason for which we have a separation of powers. It is most probable that the systems used to detect the copyright infringements were subject to a court certified report which was examined by a judge and deemed to have been acceptable. Any other technical arguments made here are therefore irrelevant.
Those protecting the "innocent" are likely net neutrality evangelists who have no concern for the property of others, unable to accept that the right to property forms an intrinsic part of our society today. The illegal distribution of copyrighted material without permission is theft and those carrying out such acts must be punished to prevent the deterioration of our creative industries.
It is reassuring to see that the pair have world class legal representation from Mark Stephens. I wish them all the best in preventing this massive injustice.
"Guilty as charged" is a long way from "prima facie evidence"
Or do you believe that courts should do away with the process of looking at the evidence and just automatically deem everyone in the dock to be guilty?
One rule for them
If reports about Linklaters and Lehmans are correct then are Linklaters going to be reported to the SRA for bringing the profession into disrepute,despite the lawfulness of what they are supposed to have done? Presumably,yes because they have sparked adverse news reports around the world. I must break off my posting to dodge some flying pigs and later I am going ice skating in hell.
Fools the lot of them!
All that will happen after a few token cases is that the P2P clients will evolve further into cryptography techniques for transmission. This is already taking place out on the net and is easy enough to morph clients over time. Then the idiots in the government, BPI, RIAA, and all the rest of you will just have useless data on request from the ISP's.
You Lawyers should stick to soliciting and law, not technology as you know not what you do or say in that respect....
Politcal Correctness Gone MAD!
The simple truth is that the SRA wanted to pass the buck and bow to politcal pressure. So let's sacrifice a couple of solicitors and toss them into the flames to avoid getting bad press from the likes of Which? Afterall, nobody loves solicitors and everyone loves the people's champions. In fact why be regulated at all, let's all defer to the "Court of Public Opinion" and be judged in the Court of Which?. I feel sorry of the DL people - did they really do anything which most solicitors would not have done when instructed and when trying to do their best for their clients? It's true what the earlier person said: we are no longer a profession. And what of Linklaters? DL supposedly upset a few people, whereas Linklaters seemingly contributed to the near total collapse of the global banking system - but I have little doubt who Which? would persecute and bad mouth more. If anyone has read some of the blogs written against these 2 solicitors we should be horrified that no protection is afforded to them whatsoever. As I said, a couple of solicitors in the flames is nothing in the Court of Public Opinion. So much for their rights - human, professional or otherwise
Having a profession be self
Having a profession be self regulated is a privilege. It is up to members of the profession to act in a reasonable professional and, above all, accountable manner. You seem to be of the opinion that you should be able to do what the hell you like. This will only ever lead to the privilege of self regulation being taken away.
I should hope that the majority of solicitors would have engaged their brain and decided that no, this behaviour is in no way proportionate and in no way serves the best interest of their clients. When the BPI themselves feel the need to condemn you actions, you must surely have the self awareness to think you might be doing something wrong?
You couldn't make it up
Two solicitors send out lawful letters requesting payment for breaches of the law. The people receiving them claimed to be bullied into paying £500 and run to "Which?", who run to the SRA and make it clear that there will be severe repercussions if the SRA do nothing.
Then SRA then send out letters to the two solicitors requesting an explanation for actions that they say are unprofessional. They make it clear that the men may have to answer to the SDT where they ,the SRA, will probably have to by a QC paid for by all of us and the men will have no representation unless they can afford it. So, the men may well feel pressurised into pleading guilty, because they are effectively being bullied into having to pay tens of thousands for representation.
Spot the difference. Clue there isn't one save that the two solicitors have much more at stake.
Is it not time for all solicitors to protest about this? Is it not time to set up a proper legal aid scheme for the SDT?, To level the playing field. Or are we simplyb going to allow our colleagues to be thrown to the wolves. Remember, it might be you next time. Think on that.
It could be you?
Is it not time for all solicitors to protest about this? Is it not time to set up a proper legal aid scheme for the SDT?, To level the playing field. Or are we simplyb going to allow our colleagues to be thrown to the wolves. Remember, it might be you next time. Think on that.
Well it might be you IF you are a bullying nasty person who threatens people with evidence they are NOT allowed to see unless it goes to court, which it wont because the Solicitors would LOSE and you cant kill the Golden Goose can you? Much better to threaten old people with alegations that they downloaded Homosexual Pornography, and then threaten to tell the world unless they pay up. How outrageous has your proffession become that you want a fighting find to defend yourself against that?
"The Solicitors Regulation
"The Solicitors Regulation Authority has referred two solicitors from London firm Davenport Lyons to the Solicitors Disciplinary Tribunal over claims that the firm sent ‘bullying’ letters accusing hundreds of people of illegal file-sharing."
i didnt think it was under dispute that they had or hadnt sent bullying letters, i thought the tribunal was being held because they Had sent bullying letters, which and the SRA have received hundreds of copies of bullying letters sent to thousands of people accusing them of illegal file sharing, this is quite different.
i received one of these letters even though i never did what they said, the letter threatened that if the case went to court the costs would blow me out of the water and i would lose my home (somwhere along those lines).
its about time they received some misery themselves the amount of stress and upset they have caused innocent people with their random claims and accusations.
This is all soooo amusing
This whole Davenport Lyons/ ACS LAW/ Tilly Bailey Irvine case is so amusing I can hardly stop laughing. This is NOT about theft, this is NOT about peoples creative rights being abused, this is about second rate games from third rate game developers that dont sell well and a great method of recouping money lost due to lack of sales as noone WANTED the material.
Stop the moral indignation that lies behind the grubby truth that some solicitors have got a great scam going here and even the Lords have described it as "Legal Blackmail". It Is impossible to prove a negative, it is like the classic question "Have you stopped beating your Wife yet? Yes or No? If Yes, why did you do it in the first place, if No, then why are you still beating her?
the reson I say Vile porn films is because if I posted the name of even the mildest one my post would be deleted. If this system is sooo good then why after I have received FOUR letters and have denied the allegation FOUR times has a summons NOT been issued to go to court where I can then have this lack of evidence thrown out? Why do I have to have it hanging around my neck for the neck SIX years traducing my name.
Even DEMOS has shown that even the so called illegal downloaders, actually spend MORE than those who buy at Itunes or the other Industry outputs. I might just add that, it might be the RECORD industry that is suffering but the MUSIC Industry is thriving. remember the Sheet Music industry? The Record industry and Game and Film Industry just have to EVOLVE to the new World. Just like Home taping did not kill Music neither did Home sewing Killl Fashion.
Mac Addresses arn't sent
I happened to come across the site through a couple of links on other forums.
I don't download content, and my router is locked. I do however share my router with about 20 friends and neighbours. This is done through the WiFi mac address. I have no idea what they do with their computers, and have no way of knowing.
I have a contract with my ISP, but nowhere in the contract does it mention that I should not download illegal content, or that I will do my upmost to prevent my connection being used to download such content.
How is it possible for my ISP to give my name and address to a solicitor without any sort of consent, contract, or court proceedings? Surely this must be against common law?
Also, should my ISP give my name, address and IP address away, there is no way any solicitor can prove that my Mac Address was used to download that content. Mac addresses are not sent digitaly.