AFACT closes with iiNet credibility attack

AFACT closes with iiNet credibility attack

ISP's CEO and chief regulatory officer continue to cop flak for their statements to the Court

The Australian Federation Against Copyright Theft (AFACT) has stepped up efforts to destroy the credibility of iiNet representatives in its closing statements.

During closing on day 18 of the trial, AFACT referred to iiNet CEO, Michael Malone’s insistence the ISP’s hands were tied in taking action against customers since it could not act on “mere allegations” of copyright breaches on the network.

But the plaintiff’s barrister, Tony Bannon SC, claimed Malone conceded AFACT infringement notices presented "compelling evidence" that copyright infringement was occurring on the iiNet network during cross examination.

“This is another dramatic example of the lack of credibility which can be attached to statements made by and on behalf of iiNet except in circumstances which were against [its] interest,” Bannon said. “If there are still shreds [of evidence] left to support [iiNet in the case], I’ll ask your Honour to disregard them.”

The Australian has reported Malone estimated half of iiNet’s traffic was used by subscribers employing BitTorrent to swap compressed versions of TV shows and movies. This was also raised again in Court during closing statements.

While Malone could not recall the quote, Bannon said Malone would have objected to it in his own affidavit.

Bannon then moved on to attack iiNet chief regulatory officer, Steve Dalby’s testimony and evidence submitted in Court.

“Dalby’s reported lack of understanding is exaggerated,” Bannon said.

In his affidavit, Dalby previously claimed he had difficulty comprehending the infringement data provided to iiNet by AFACT. This was refuted by the plaintiff’s legal counsel on day 15 of the trial, when internal email correspondence showed Dalby had discouraged an iiNet employee to look further into the matter.

He also later admitted iiNet had a firm stance of not acting on infringement notices despite whatever other information AFACT provided.

The AFACT barrister also highlighted the adverse affect illegal downloading has had on his clients.

“The movie studios get no revenue return from unauthorised downloading,” he said. “It is costing them, and the only party to benefit is the party interested in selling plans to persons with high bandwidth quota… and selling plans of higher and higher value.

“That party is ISPs, in this case, iiNet.”

Press releases demonstrating the ISP’s ‘encouragement’ of infringement acts by subscribers were again raised in Court. In a November 2008 release on the company’s website, titled iiNet to vigorously defend Federal Court action, iiNet had said it could not "disconnect a customer’s phone line based on an allegation”. It also said an alleged offence needed to be pursued by the police and proven in courts.

Bannon argued telling customers they were safe from prosecution until a court order was issued is “plain encouragement”. Presiding Judge, Justice Cowdroy, asked Bannon to clarify whether this statement was directed at the company itself and not at a specific individual.

“It’s a form of encouragement but [it does] not question the credibility of anyone,” Bannon said. “[It is a] general issue but it doesn’t do the credibility of Mr Malone any good.”

iiNet’s legal team is expected to make its closing statement on November 12. For a detailed timeline of the trial, click here.

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