The High Court has refused Digital Rights Ireland Limited’s application to take part as amicus curiae in record companies’ proceedings seeking orders to block access to the Pirate Bay website through internet service providers.
The application concerned only whether Digital Rights Ireland should be appointed to assist the court. It did not decide whether the requested blocking orders should be made. Mr Justice Kelly delivered the judgment on 3 May 2013.
The four record company plaintiffs seek injunctions under Statutory Instrument 59 of 2012, which permits applications against internet service providers under Article 8(3) of the Copyright Directive. They seek to require six provider defendants, including Telefónica Ireland Limited, to block or disable access to the Pirate Bay and related addresses. The judgment records that the providers were neutral on the amicus application; the plaintiffs opposed it.
Digital Rights Ireland said the case raised issues affecting internet users and site operators who were not parties. Its chairman, T.J. McIntyre, said it could help the court consider human rights and public interest issues, including experience from other jurisdictions. The plaintiffs argued that the organisation could not act neutrally, pointing to its opposition to the statutory instrument and its involvement in the Stop SOPA campaign. They also said the parties could address the relevant legal issues themselves.
Justice Kelly accepted that the court has an inherent power to appoint an amicus, but said it should be used sparingly, particularly at trial level. He found that Digital Rights Ireland had no public role under domestic or international law in the area covered by the litigation. He also concluded that its public campaigning against the statutory instrument made it difficult to regard the organisation as neutral.
The judge was not persuaded that the organisation would bring a perspective on matters of principle or public importance that the court would otherwise lack. He noted that the parties could make submissions on the relevant law and that the court could seek further assistance from them if needed. He also rejected the argument that the application was a test case requiring an amicus, observing that the statutory instrument gave effect to a European directive on which courts had already developed case law.
The application was refused. The judgment did not determine the record companies’ substantive request for blocking orders.