ANIME distributor Odex's failed bid to win a court order forcing Pacific Internet (PacNet) to disclose the names of alleged illegal downloaders may have set an important precedent in the area of Internet privacy.

District Judge Ernest Lau released his judgment to the media yesterday and outlined his reasoning.

He compared a request for an Internet service provider's subscriber information to what is known as an Anton Piller order in the law world.

An Anton Piller order allows the plaintiff to enter someone else's premises, halt all activities, make a search - for days if necessary - and then seize all incriminating evidence found.

Because of its 'draconian' nature, such orders are only granted when the plaintiff can prove it had an 'extremely strong prima facie case of a civil cause of action', wrote Judge Lau.

He said he required a similar standard of proof in the Odex case to protect 'public interest'.

Service providers like PacNet, he wrote, owe it to both their customers and regulators to protect subscriber information. Singapore has no privacy law as such.

Odex, said Judge Lau, failed on two counts.

Only copyright owners - that is, the studios that made the anime - or an 'exclusive licensee' for the anime being downloaded, can take legal action under the Singapore Copyright Act.

Odex is a sub-licensee and had letters from rights owners authorising it to take action on their behalf, but the firm was neither a copyright owner nor an 'exclusive licensee'. An exclusive licensee has the sole right to distribute a product in a certain market.

Judge Lau added that he was also not wholly satisfied with Odex's explanation of how it identified the downloaders.

Five lawyers told The Straits Times that the high standard Judge Lau set for the Odex court order was unprecedented.

Such orders for subscriber information are usually routine procedures. A plaintiff would use the information discovered by the court order to decide his next step. In Odex's case, it needs the names so it can send its letters demanding settlement.

One lawyer who declined to be named said it now 'sounds like the plaintiff must prove to the court at a very early stage that it will very probably win, which may not always be possible in Internet-related cases'.

Other district judges do not necessarily have to follow Judge Lau's ruling.

But if Odex appeals to the High Court - it is considering this - and Judge Lau's ruling is upheld, all future rulings will have to meet the sort of standard of proof required to get an Anton Piller order.

The ruling, said corporate counsel and Nominated MP Siew Kum Hong, could make it 'cumbersome and expensive, although not impossible', for rights owners, and 'especially those overseas', to take legal action against downloaders.

The lawyers also noted that the ruling could have an impact on other online identity-related areas, for instance, those involving defamation or fraud.

Odex is acting against people allegedly downloading anime, or Japanese cartoons, illegally. Earlier this year it successfully forced StarHub and SingNet to disclose the names of subscribers allegedly downloading such anime.

It has been sending letters to these downloaders since May demanding settlement of between $3,000 to $5,000.

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Why PacNet succeeded

SOME light has been cast on how the anime distributor Odex was able to obtain court orders against SingNet and StarHub but not Pacific Internet (PacNet).

All three cases were heard 'in chambers' at the Subordinate Courts by different judges and these proceedings are rarely made public.

But District Judge Ernest Lau released a 14-page written judgment yesterday explaining the ruling he handed down on Thursday in Odex's case against PacNet.

Odex had demanded that the three Internet service providers supply the names of subscribers who had been downloading content illegally from Odex's anime site.

It won orders against SingNet in May and StarHub earlier this month, but Judge Lau turned down its request for an order against PacNet on Thursday. He noted that 'for the SingNet case, the orders were made by consent'.

A lawyer familiar with such proceedings said this means during the run-up to the hearing, SingNet had written to Odex to 'consent' to its request.

Odex's lawyers, Rajah & Tann, presented this note at the hearing. Judge Lau also noted that SingNet's lawyers did not attend the hearing.

A SingNet spokesman said that 'when Odex first approached us through their solicitors, we told them that we will not provide any customer information to them unless they produce a court order.

'Subsequently, Odex obtained the court order and served it on us. We then complied with (it).'

In StarHub's case, its lawyers, Drew & Napier, were present, but 'the issues raised here (by PacNet) were never fully argued before the court', Judge Lau wrote. A StarHub spokesman told The Straits Times that the firm had 'resisted Odex's application...as we take a serious view of our obligation to safeguard our customers' confidentiality'.