United KingdomJanuary 25 2023
What did the Intellectual Property Office (IPO) Guidance say?
The IPO issued some Guidance in December 2022 on The Effect of Piracy. The original draft included reference to password sharing between households and that this practice represented a breach of copyright law. The BBC reported that this draft was later updated to remove the reference to illegality.
However, a follow up enquiry from the BBC obtained confirmation from the IPO that password sharing was potentially illegal from both a civil and criminal law perspective:
Tom Gerken, BBC Technology Reporter stated: “One interesting part of the IPO's response is the reference to criminal law - suggesting that people could theoretically face prosecution from the Crown Prosecution Service (CPS) for password sharing.”
What behaviour is the IPO concerned about?
It is common for individuals in the UK to share their streaming service passwords with people they do not live with, whether that be friends or family members. Over the years streaming services like Netflix have increased restrictions on account usage, such as introducing a maximum number of simultaneous screenings and adding different account tiers with varying access rights.
Streaming platforms’ terms of use generally include restrictions on use of the account beyond the subscriber’s household. As an example, Netflix’s terms of use state the following:
“The Netflix service and any content accessed through the service are for your personal and non-commercial use only and may not be shared with individuals beyond your household unless otherwise allowed by your subscription plan.”
Sharing your password with a family member or friend who is not in your household is therefore a technical breach of Netflix’s terms of use. However, there is currently no evidence that Netflix or any of the other large streaming services available in the UK are taking any steps to enforce these technical breaches.
Is password sharing illegal?
Password sharing has the potential to be both a criminal and civil matter and we have set out some examples below:
Civil liability
Password sharing outside your own household is likely to be a technical breach of your streaming platform’s terms of use. This is a breach of contractual terms which could result in a damages claim from the streaming platform for revenue lost by virtue of a non-household user accessing the service without paying for a subscription. The streaming platform may also terminate or restrict your account if you violate these terms.
The user outside your household could also be committing copyright infringement under the Copyright Designs and Patents Act 1988 as viewing content would constitute unauthorised copying of the material. Depending on the circ*mstances, you may also be liable for this copyright infringement as you may have technically authorised it by sharing your password.
Criminal liability
Password sharing could also fall foul of the criminal justice system if the Police and Crown Prosecution Service felt there was sufficient evidence of fraud or other criminal copyright activity and a prosecution was in the public interest.
Will streaming platforms ever pursue users for password sharing infringements?
The examples of civil and criminal liability for password sharing given above are unlikely to be pursued by streaming platforms in practice for a variety of reasons.
Firstly, there is little business case in streaming platforms pursuing users through civil courts as the cost of issuing any form of proceedings is likely to be prohibitively expensive. Secondly, from a public relations perspective, streaming platforms are unlikely to start pursuing their users for minor damages claims as this is likely to lead to a drop in subscribers. It is also far easier and cheaper for the platform to suspend or remove any users guilty of breaching its terms of use within the platform by de-activating the relevant account.
From a criminal law perspective, notwithstanding the CPS’ statement to the BBC, it is difficult to see a genuine public interest argument for prosecution of an individual for password sharing across households. Any prosecution in this area would likely require a larger fraud or piracy conspiracy, perhaps involving the theft of personal details from multiple user accounts and/or industrial scale piracy.
What does the future hold?
As we move through 2023 it is likely that video streaming platforms will continue to strengthen their control over user access. The ‘nuclear option’ would probably involve a direct link between a user account and a home network IP address, but this may unfairly disadvantage users who utilise virtual private networks (VPNs) for added security. A more likely outcome during 2023 is increased control via ‘tiers’ of membership, with the highest paying customers receiving minimal restrictions on use across multiple locations and devices.
Tom Gerken, BBC Technology Reporter stated: “One interesting part of the IPO's response is the reference to criminal law - suggesting that people could theoretically face prosecution from the Crown Prosecution Service (CPS) for password sharing.”
