Piracy is big business. HBO, which this week released the fifth series of the popular "Game of Thrones" decided to do so simultaneously across all broadcast regions, apparently in an attempt to minimize the losses from illegal downloading.
The ever increasing rise of illegal downloading of TV programmes, films and music has in turn precipitated a number of campaigns by copyright holders in various jurisdictions (or those acting on their behalf) to seek financial redress. This has often taken the form of aggressive correspondence from lawyers accusing the recipients of illegal downloading and demanding payment of a fixed sum to avoid subsequent legal action. In the UK, such campaigns have fallen foul of the SRA, resulting in disciplinary action against various firms, most notably Davenport Lyons and ACS:Law, on the basis that the threats made were groundless because there was no intention to bring a legal action and/or no proper basis on which such an action could be brought.
The campaigns also resulted in a significant amount of litigation against the firms in question. Following the Law Commission's recommendation, the government has now decided that such satellite litigation should stop and that misconduct by legal representatives is a matter for the regulators.
While it must be right to stem the tide of unnecessary litigation, as a student of legal regulation, this prompts a couple of questions for me.
Firstly, despite the precedent of the ACS and Davenport Lyons cases, I still wonder whether we are any clearer where the line is drawn when it comes to correspondence on behalf of clients, particularly if addressed to lay people, that may be perceived as aggressive. The defence for both ACS:Law and Davenport Lyons was that the solicitors involved subjectively believed the putative claims were well-founded, they were acting in their clients' best interests and that they were acting entirely within the bounds of conventional practice in proposing what they thought was a reasonable compromise to a valid claim.
That defence was ultimately unsuccessful, but the SRA Code of Conduct remains gnomically vague in its guidance. There is of course a requirement not to take unfair advantage of third parties (though one might also take into account the duties to act with integrity and to uphold the rule of law) but without further elaboration on what this may mean. Is there an agreed ethical position here and if so should it be articulated for the benefit of the profession(s) if regulators are again required to deal with a volume of such complaints?
Secondly, in essence the ACS and Davenport Lyons cases highlighted the response of individuals to the professional duties imposed by their own regulator. Regulation has moved on. It is increasingly about entities rather than individuals and those who do the work and their managers (especially in bulk litigation of this type) are very likely to be unqualified and therefore not subject to an individual professional code (indeed this was to a great extent the situation at ACS:Law, where the work was principally conducted by paralegals, though the sole principal, Andrew Crossley, was intimately involved in the work). The onus will therefore be on the entity to demonstrate how it promulgated whichever regulator's code of conduct it is governed by internally. In turn, this surely implies that in e.g. attempting to enforce the rights of copyright holders, such firms will also need to set an ethical position and train staff accordingly. How many law firms currently train their staff, qualified or non-qualified on (professional) ethics?
In its final response to the proposals, the government accepted the commission’s argument that the right to sue lawyers could be manipulated by disputing parties and added to the cost of litigation, and that misbehaviour by lawyers should be dealt with by their regulators.