On my Landlord Law site, we have a members discussion forum where members sometimes ask me questions. An interesting question recently, and a new one for me, was on what to do to protect yourself against any problems arising from tenants’ misuse of the Internet, if an internet service is provided by the landlord.
My questioner referred me to an item in the ‘Ask Tom’ section of the Landlord & Buy to Let Magazine. Here a landlord asked for advice after receiving a solicitor’s letter which threatened legal action over alleged illegal file sharing on an Internet service provided to his tenants. As his property has a high turnover, the tenant had long gone. What should he do?
Tom (actually Tom Entwistle of LandlordZone) suggested using a detailed application form (so tenants could be traced afterwards), a clause in the tenancy agreement stating that any liability for improper internet use was the tenants, and getting tenants to apply for their own ISP accounts.
The trouble is, for short term tenants (and indeed for hotels which offer internet computers in hotel bedrooms) its not realistic to get tenants to apply for their own accounts. And I’m not sure how having a clause in the tenancy agreement can help you (vis a vis the person who owns the breached copyright), if you really are liable for your tenant’s action. But are you?
Seeking answers, I turned first to one of my favourite legal blogs, the delightful Technolama, which majors on cyberlaw topics. (It is written by a respected academic lawyer from Edinburgh University). I found a bunch of stuff.
This post describes the activities of law firm ACS Law (one of several law firms involved in this type of work). How they obtained customer information from internet service providers linking IP addresses to broadband account holders, and how they then wrote to those customers asking for an out of court settlement as compensation for alleged breach of copyright. Tom’s correspondent is presumably referring to one of these letters.
Not all the recipients of the threatening letters though, paid up. Quite a few complained to Which, who then filed a complaint with the Solicitors Regulation Authority. As a result ACS Law are it seems, being investigated by the Solicitors Disciplinary Tribunal apparently for unethical practices.
However, this is not their only problem. It is never a good idea to annoy internet activists, and inevitably, ACS Law’s website suffered a ‘denial of service’ attack. However, after service was restored, somehow all of ACS Law files were made available on their website to the public. Including confidential client information.
Needless to say much of the content was gleefully downloaded by the activists and posted elsewhere. So ACS Law are now also facing investigation by the Information Commissioner’s Office, and could well be fined. (Note – I had no idea that all this had happened – just shows I should read Technolama more often).
To find out the full story you need to read the Technolama post. This post here on the BBC site gives some more information, and there is an interesting page on Wikipedia on ACS Law and their activities. Finally here is a page and video from BBC Watchdog.
23 Jan 2012 – Note – see also now >> this report form the Guardian saying Crossly has been suspended by the solicitors discriplinary tribunal.
So, returning to the original question, do landlords need to do anything to protect themselves? This is very much out of my field and I would welcome comments by more knowledgeable readers (particularly if you are a lawyer specializing in this area).
However, it does seem as if no successful court claims have yet been brought against letter recipients unwilling to ‘settle out of court’, other than a few where no defence was raised. Technolama’s post here talks about the problems in detecting illegal fileshareing, and it looks as if the courts are going to be less willing make disclosure orders relating to customer information in future.
But if landlords (and those in similar positions) are going to be held responsible for their tenants actions, then this will cause all sorts of problems, and it may become too risky for such services to be provided. My view is that it would be grossly unfair for landlords to become liable in this way. People should not be held responsible for something they have not done.
What do you think?
Photo by Adja Gregorcic
I fail to see how landlords can be made legally liable for infringement of copyright by their tenants, any more than they could if their tenants where breaching patents on the premises.
A perhaps more likely scenario is where the aggressive copyright owner tries to get the internet connection shut down.
I would hope that landlords would not be liable in these circumstances, but do not know enough about this area of law to be able to say for sure. There may be a strict liability element.
Strict liability or not, for landlords to be liable it would have to be a species of vicarious liability. Of course, I can’t say for certain that the entertainment industry haven’t procured some wacky (perhaps EU-legislated) vicarious liability regime.
If they have, there isn’t much a landlord could do, except refuse to provide internet access.
The Digital Economy Act is what you need to look at here.
We’ve written a piece about it here
http://ip-brands.com/blog/index.php/2010/07/19/1187/
and if you do a search on our blog for this term you will find other related articles.
Thanks Shireen. Anyone interested should read the article (and others on the Azrights blog) but here is a relevant extract (the act referred to is the Digital Economy Act):
The Act also provides for the blocking, or limiting, of an internet connection in response to its use in connection with copyright infringement. While this has been more widely discussed so far as it relates to domestic internet use, it is of the utmost importance to business owners.
If employees use the internet while at work to access or share infringing material, the provisions may just as easily be used to block or limit that connection. Such a sanction has the potential to cripple a modern business venture, and it is not only the activity of those in your employ which may constitute cause for concern.
If your internet connection is shared over an unsecured wireless network, then infringing use of the connection by a passerby can have similar consequences.
So presumably if tenants using an internet connection provided by their landlord misuse it, it can be shut down.
There are some similarities here with speeding tickets, in that the evidence (photo of car, or IP address) provides evidence of illegal activity, but it does not specifically identify the person who did it. In fact it’s quite possible, for example if the wifi were insecure, that a landlord may receive a letter accusing him of infringement when in fact it wasn’t him OR his tenants, but someone who got into the wifi from outside the building.
This same issue does apply to hotels and libraries and so many other areas. I would (perhaps idealistically) hope that Copyright owners stop criminalising their customers and instead focus on making all their wonderful content available at fair prices, and so it’s very easily accessible. Right now if you wanted to watch many TV programmes online, they’re not available at all, and those that are have silly limitations or absurd prices. Spotify is a wonderful example of a new, innovative business that may help plug the revenue gap.
The Digital Economy Act is quite the most appalling piece of legislation I’ve seen, and it was doubly so as I watched it being passed by the commons with hardly any MPs bothering to turn up for the debate, and large numbers then flooded the chamber when the vote came, just voting along party lines without properly considering (or even understanding) the issues involved. It was a sad and disgraceful day for British democracy, and a sad day for the Internet.
On a practical level, as a landlord, I do not provide wifi, I let the tenants take on that responsibility. If I were to run an HMO, I think I’d have to provide it, and in those cases I’d use the AST to pass responsibility for costs related to misuse onto the tenants, not perfect but I’d be comfortable with the reasonably low risks across the portfolio.