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
 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 ...|
|Why it's better to be|
a cat than a human
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