This article problematizes the use of the bona fide case standard as the legal standard for a court to order a third party Internet Service Provider ("ISP") to disclose subscriber information to a copyright owner in online piracy cases. It argues that ISP account holders have a reasonable expectation of privacy in their subscriber information. It contends that the current bona fide case standard affords a relatively low threshold of protection for Internet users’ subscriber information. The reason for which the article takes this position is that the bona fide case standard can be met solely by IP address evidence, which is notoriously unreliable. On this basis, the article suggests that courts should adopt the higher evidentiary standard of the prima facie case standard, which would not be satisfied by IP address evidence. It concludes by contending that this higher standard would protect Internet users’ reasonable expectation of privacy. It recognizes that applying the prima facie case standard for the issuing of a disclosure order would adversely affect copyright owners’ ability to obtain such orders. For this reason, the article advocates for the utilization of alternative dispute resolution mechanisms that more adeptly balance the privacy and intellectual property interests at the center of these online piracy disputes.
Rethinking Online Privacy in Canada: Commentary on Voltage Pictures v. John and Jane Doe
Canadian Journal of Law and Technology
Available at: https://scholarship.law.bu.edu/faculty_scholarship/3142