ISPs: Be careful what you say to media about copyright case

Online tech magazine IT News could have inadvertently lured ISPs into legal disaster with a recent article on copyright issues. 

By publishing broadband provider comments about legal advice they may have obtained, the mag could have led them to waive the right to keep the details secret.

It’s vital for CSPs to understand the risk they may create if they publicly refer to legal advice they have received.

The problem

Normally, legal advice obtained by a company is ‘privileged’.  That means that nobody … particularly somebody who is suing it … can demand to see a copy.

But the courts have ruled that by publicly referring to legal advice in certain ways, the company may waive that privilege.  In other words, in a legal case, the other side may be entitled to say, ‘Great.  You claim to have taken legal advice and it says you’re in the clear.  Fine.  Give us a copy.’

Potential disaster

Because lawyers write legal advice for their clients’ eyes only, it often contains material that would do damage if it leaked.  For instance, they might talk about serious weaknesses in their client’s position.  Or they might discuss facts that would not be known to the company’s enemies.

Disclosure could be a first class disaster.

When is privilege waived ?

It’s complicated.  Normally, merely stating that you have obtained legal advice isn’t a problem.  And sometimes it could even be safe to go a little further and indicate the general thrust of the advice.  Or say, ‘We have taken the advice carefully into account in our actions.’

But it is easy to step over the line and waive privilege on all or part of the private advice.

Sound advice from the Victorian Government Solicitor

The Victorian Government Solicitor’s office offers good advice on the subject. 

Making public statements about legal advice

[The] manner in which legal advice is disclosed in public can lead to a waiver of [privilege].

It is less likely that [privilege] will be waived where reference is made only to the fact that legal advice has been obtained. Revealing the substance of that advice should generally be avoided. This includes summarising or describing the conclusion of legal advice, or giving the ‘gist’ of what it says.

If maintenance of the confidentiality of a particular legal advice is important …, advice should be obtained prior to publicly commenting on that legal advice to ensure there is no inadvertent waiver of [privilege].

While the VGS made these remarks in the context of advising Government, they stand true for private companies as well.

A case in point:  iiNet comments

We’ll be interested to see whether iiNet’s nemesis AFACT will try to use a public statement by iiNet to gain access to a copy of advice received from its lawyers about compliance with the copyright ‘safe harbour’ rules. 

iiNet may have obtained legal opinion on the effect of its public statement, and be confident that it does no harm.  Otherwise, it was extremely dangerous ground for the company to be treading on.

What if your company is asked about legal advice ?

What’s in it for you to take any risk ?  Unless there’s a special factor that makes it worth your while, just say that it is company policy not to comment on legal advice that may or may not have been received.

You might still make some general comments on whatever issue is at stake, but nothing that infers that you hold advice, or what its contents or effect may be.