Taking escorts' photos from a competitor's website without permission? Not a smart idea, rules Birss J

An incredibly revealing picture
of wannabe luxury escort Paulo

This morning Birss J issued his decision in Omnibill v Egpsxxx and Carter [2014] EWHC 3762 (IPEC), a saucy case concerning copyright, escort services and pornographic photographs [unlike his judgment in the Red Bus case, readers will be saddened to learn that this time the learned judge did not reproduce the relevant images in the final text of the decision].

The facts of the case were as follows.

The claimant provides escort services in South Africa, and to this end also operates a website that hosts a number of photographs. The defendants, a UK company and its director, Mr Carter [the company has been subsequently liquidated and Mr Carter currently works as a "forklift truck driver at a warehouse for Tesco"], provide "similar and competing services" to those of the claimant, and also operate a website (www.escortgps.xxx) [Merpel wonders whether this domain name means that escorts are fully equipped with a GPS device?]. 

The problem is that the latter hosted photographs allegedly taken from Omnibill's website without permission. The images in question were used as part of advertisements by escorts offering escort services, and were generally pornographic in nature. 

After solving issues relating to the actual responsibility for setting up and running the defendant's website, Birss J addressed the relevant copyright issues, notably whether there was an infringement of UK copyright. While admitting unauthorised reproduction and communication to the public of the claimant's works, Mr Carter denied that any of the allegedly infringing acts had taken place in the UK.

Different degrees of friendliness
are provided by the employees of
this escort service

The judge addressed this issue by looking at whether the website or relevant parts of it were targeted at the UK public. He observed that: "It is common ground [see paras 48 to 51 of the judgment of Arnold J in EMI v BSkyB] that if they are targeted at the UK then infringement of UK copyright has been committed by the first defendant. If the website is not targeted at the UK then no infringement of UK copyright has taken place at all." [the judge then cited a number of decisions of the Court of Justice of the European Union (CJEU) in which the 'intention to target' approach was employed. However, there is no mention of more recent stances (read: Pinckney, or the Opinion of Advocate General Cruz Villalon in Pez Hejduk) in which the CJEU purportedly departed from this criterion, at least in the context of establishing jurisdiction].

Birss J especially relied on the CJEU decision in Pammer to consider whether the defendants' activity was targeted at the UK. He stressed that, while looking at the content of a website might concur to a finding that this is targeted at the UK, other factors, eg the number of visits from the UK, would also have a significant - yet, not determinative - bearing. The judge also recalled his earlier judgment in Victoria's Secret [here] to state that it is not necessary that the entire contents of a website are targeted at the same country.

Since all this is a matter of fact, the judge turned to considering whether www.escortgps.xxx was targeted at the UK. He concluded that it was. So, he found that both defendants had infringed the claimant's rights under UK copyright law.