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Monday, 21 January 2013

The Case of the Pixelated Privates: Sun restrained from publishing Pope's party pics

When the IPKat sees a litigant with a surname like Rocknroll, his whiskers twitch at the prospect of an IP action involving infringement of copyright in some Rock 'n' Roll classics. The twitching was erroneous in Rocknroll v News Group Newspapers Ltd [2013] EWHC 24 (Ch), a Chancery Division (England and Wales) decision of Mr Justice Briggs last week that had no shake-rattle-and-roll in it at all. The whiskers did not however twitch in vain, for the litigation in question did at least touch on a very interesting copyright issue.

Naked birthday cake ...
In July 2010 Mr Edward ('Ned') Rocknroll -- born Noddy Abel Smith and later to become Mr Kate Winslet --attended a private fancy dress party to celebrate the 21st birthday of his then wife’s sister at her parents’ private estate. Another guest at the party, James Pope, took a series of photographs to record this joyous event, some of which showed Rocknroll partially naked [look on the bright side, says Merpel: if he was partially naked, he was also partially clothed].  Pope later posted the photographs to his Facebook account where they could be viewed by his approximately 1,500 friends [is that all?], but not by the general public.

Why it's better to be
a cat than a human
Rocknroll's celebrity value was undoubtedly enhanced after he divorced the wife whose sister's party it was and married Kate W, whose rolls with various gentlemen roles in various movies have attracted considerable critical acclaim.  As luck would have it, the photographs of Ned in the Nearly Nude came to the attention of News Group Newspapers [think The Sun and the late lamentable News of the World], which sought to place the photographs, together with a description of their contents, before an eagerly expectant nation. The Sun notified Rocknroll of its intention to do so and stated that it intended to pixelate [the judge prefers "pixillate", notes Merpel, by analogy with "titillate"] the part of any published photographs which showed the lower half of Rocknroll's body (i.e. the bit that many purchasers of the newspaper most wanted to see). Rocknroll found that Pope had taken the photographs, which were later removed from Pope's Facebook account.  Having cleverly obtained an assignment of Pope’s copyright in the photographs, Rocknroll applied for an interim injunction to stop the Sun publishing either the pics themselves or a description of them, relying both upon his status as copyright owner by assignment, and upon his rights under Article 8 (the right to respect for one's private and family life, subject to some usefully large exceptions) of the European Human Rights Convention  (ECHR).

In these proceedings Briggs J had to decide (i) whether Rocknroll had a reasonable expectation of privacy, so as to engage Article 8 of the ECHR and (ii) the proper balance to be struck where a claim for an injunction to restrain a threatened infringement of copyright would adversely affect the defendant’s right of freedom of speech under Article 10 of the same Convention (this being the right to impart information, also subject to some usefully large exceptions).

Briggs J held for Rocknroll.  In his view:

* It was a well established feature of case law that Article 8 privacy rights were particularly likely to be engaged by a threat to publish photographs.

* When interim relief is sought in order to restrain a threatened misuse of private information, the court had to decide whether the applicant had a reasonable expectation of privacy so as to engage Article 8; if not, the claim failed straight away: an interim injunction should not be granted unless a court was satisfied that the applicant was likely to obtain an injunction following the full trial.

* On the facts, the Sun's threats both to publish the photographs and to publish a description of them would likely trample on Rocknroll's Article 8 rights -- and it was very unlikely that the defendant would be able to establish at trial that no useful purpose would be achieved by a restraint on publication of the photographs or their contents, or that there was no longer anything by way of privacy left to be protected.

* The Sun would be unlikely to establish at trial that, in consenting to the taking of the photographs, Rocknroll intended to consent to their publication in a national newspaper -- he was not that sort of person (i.e. he was not a member of that elite club of celebrities who, although engaged in no public office, might be regarded as having reduced expectations of privacy due to their important role in national affairs, such as the chairmen of major public companies and the captains of national sporting teams). Rocknroll had not enjoyed, let alone courted, publicity as a prominent member of the 'social sphere', as identified in Von Hannover. What's more, the consequences of publication, in terms of risk of harm and distress to Kate Winslet’s children, also inclined the court to decide in his favour.

* An application for interim relief to restrain infringement of copyright could in theory trump the Sun's Article 10 rights too, but it would only prevent the actual copying of photographs, not the publication of a verbal description of their content. This being so, a copyright-based injunction would certainly not constitute a disproportionate fetter on the Sun's 10 rights -- and it was plain that Rocknroll, as owner of the copyright, had a much better than even chance of winning at trial.

This Kat is all in favour of this decision: there does not seem to him to be any balancing act between the values of privacy and press freedom that can justify foisting Rocknroll's private bits -- whether pixelated or otherwise -- upon the unsuspecting British public.  Merpel is just enchanted by the name Winslet.  If a piglet is a little pig, is a Winslet a little winsle?  Both Kats wish that people would stop writing about "naked photos" or "half-naked photos": it's the people who are wholly or partly starkers -- not the photos.

For further discussion see the excellent Inforrm blog here.
How to pixelate photos here

Further recommended links for connoisseurs of vintage music
Rocknroll fantasy here
Rocknroll suicide here

3 comments:

Mary said...

Although copyright was not the main game in the case, there were some interesting comments by the judge about the Facebook terms and conditions. RocknRoll had taken an assignment of the copyright from Pope but the Facebook terms and conditions 'provide for a non-exclusive transferrable licence' in favour of Facebook in relation to 'material accessible to its account-holders'. RocknRoll didn't appear to have taken any 'transfer of Facebook's rights' in the photographs. An added complexity to the copyright rights picture...

Andy J said...

@ Mary.
As you say copyright was not the main issue at stake here, but I'm not sure I fully understand your point.
Briggs J pointed out, at [44], that it was the defendant (the Sun) who had not obtained any transfer of Facebook's rights, not the claimant. As the judge also noted, it is probably not in Facebook's long term interests to have made a transfer to a newspaper, given the recent uproar when Instagram attempted to give itself wider rights to exploit contributors' images.
As the images on Facebook were deleted at around the same time as the assignment was made, this action automatically cancelled Facebook's licence (see para 2.1 of their terms), hence the claimant has no need to do anything about the transferrable rights as they no longer exist.

Mary said...

Thanks Andy for picking up my error. Yes it was the newspaper that hadn't acquired any rights from Facebook. As for the termination of the licence,don't the Facebook terms currently provide in part: 'This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.'? So content deletion, even termination of account, does not necessarily mean the licence is terminated or is this incorrect?

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