Image rights: England v Germany and Philip Woolas's mug

Matt Wardman of the Wardman Wire asks an interesting question on the mySociety:public mailing list. He had created a couple of mug designs poking fun at the former MP Phillip Woolas and submitted them to the online platform Spreadshirt. According to his blog post they refused to accept the designs, saying:

These designs or products most likely infringe legal regulations. If not then the content is considered offensive, discriminatory or glorifies violence.

Now of course the designs were offensive — in the sense that someone could be offended by them — that really was the idea. If there were a law against being offensive Private Eye could never be published. Spreadshirt's Terms and Conditions say nothing to forbid offensive material; nor could the designs possibly seen as discriminatory (except perhaps against MP's who lose election courts) or glorifying violence. What of the "legal regulations" that Spreadshirt thought might be infringed.

A later response gave some clarification:

"Unfortunately we could not admit them for your shop because they infringe on the personal rights of Phil Woolas. These basically state that any image with his photo or name on it that does specifically refer to his person must be authorized by him. "

Such an unqualified statement of law must be rubbish, at least in any civilised society. If it were true then editors would find it virtually impossible to illustrate their newspapers and most of their budgets would be spent on clearing image rights with those depicted.

English law doesn't recognise an image right per se. The use of a person's image is not entirely free. For example if I take a photograph of you, you may be able to prevent me from using it:

• in a way that is defamatory of you — as in Tolley v J S Fry Ltd [1931] AC 333, where an amateur golfer successfully sued for libel when his image was used in a chocolate advert since it carried an implication that he had been paid for the advertisement and was therefore not maintaining his amateur status;
• to pass off your business as mine — this extends as far as using the image of a celebrity to falsely imply that they endorse my business, as Talksport did when the edited an image of Eddie Irvine holding a mobile phone into one holding a radio labelled "Talksport" in Edward Irvine Tidswell Ltd v Talksport [2002] EWHC 367 (Ch);
• in breach of trademark — assuming of course that you have trademarked your image and that my usage amounts to an infringement of that mark;
• in breach of confidence — if I received the photograph in confidence and my use of it is a breach of that confidence
• in a way that infringes your right to privacy derived from Article 8.1 of the European Convention on Human Rights(assuming I obtained the photograph in confidence) — in a case (Campbell v MGN [2004] UKHL 22) brought by Naomi Campbell against the Mirror for the publication of photographs of her going to a Narcotics Anonymous meeting, the House of Lords extended the action for breach of confidence to cover intrusions into an individuals private life;

There is also the Data Protection Act 1998. If the photographs are processed by computer (as they are by spreadshirt in this case) then they must also be “personal data”. If so, then they may only be processed if one of the conditions in Schedule 2 to the act are met. Processing for the purposes of journalism, literature and art is excluded from an obligation to comply with most of the data protection principles (by section 32) which makes life very much easier for newspapers. For use of photographs which is not journalism, literature or art, paragraph 6 of Schedule 2 would have to be relied on which requires that:

The processing is necessary for the purposes of legitimate interests pursued by the data controller or by the third party or parties to whom the data are disclosed, except where the processing is unwarranted in any particular case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject.

Unfortunately there has been little consideration of this aspect of the Data Protection Act. In many cases the act is pleaded, but the eventual decision hangs on some other branch of the law. For example in Campbell's case.

It seems to me that neither of the mugs could possibly be defamatory (“Phillip Woolarse” doesn't come close), no-one coudl think that the mugs implied that Mr Woolas endorsed the Wardman Wire or that they were really the same business as him. The photographs were taken from election leaflets, criticised by the election court, and so are hardly an invasion of Mr Woolas's privacy and, arguably, they are “art” and so defensible against a Data Protection Act 1998 claim.

So much for England, but spreadshirt is German based. Now as an English lawyer, I known next to nothing about German law, but as I understand it the German KunstUrhG (law on the copyright of works of visual arts and photography) recognises a right known as Recht am eigenen Bild, usually glossed as “right in their own image” which I will refer to as “image right”. Section 22 of the KunstUrhG prohibits the distribution or public exhibition of the image of an individual without that individual's consent. A right to control over the use of one's image is also derived from Article 2 of the German Basic Law.

To an English lawyer's eyes this seems, at least at first sight, to give an excessive degree of control by an individual over the use of their image, and also to be a serious impairment of the freedom of speech. But German law is much more nuanced than that, not least because Article 5 of the Basic Law guarantees a right to freedom of expression.

Section 23 of the KunstUrhG makes a number of sensible exceptions, including one for images of people from the sphere of contemporary history (Bereiche der Zeitgeschichte). Until recently the German courts divided contemporary public figures into two groups: absolute figures of contemporary society (absolute Person der Zeitgeschichte) — those who stand out from the rest of society for example because of their political or social position, such as major political figures; and relative figures of contemporary society (relative Person der Zeitgeschichte)— those in whom there is public interest only due to a single event, such as victims of a notorious crime.

Section 23(1) is subject to section 23(2) which prevents distribution or display which harms the legitimate interests of the person portrayed (or after their death, the legitimate interests of their family). But section 23(2) aside, the absolute/relative classification would have meant that absolute figures of contemporary society had little protection against the use of photographs in a way that invaded their private lives unless they could show that a specific legitimate interest had been harmed.

The German law was found to be contrary to Article 8 of the European Convention on Human Rights in von Hannover v Germany brought by Princess Caroline of Hanover. The German Federal Court dropped the absolute/relative distinction (VI ZR 51/06) and held that the proper approach in all cases was to consider the balance between an individual's article 8 (basic law article 2) rights as against the interests of free speech under article 10 (basic law article 5). This approach has been endorsed as constitutional by the Federal Constitutional Court in a decision [link to English version] which usefully summarises a lot of the background.

Even after Princess Caroline's victory in the European Court of Human Rights, not everything has gone her way. Although the German courts agreed to prevent the distribution of some pictures of her, they permitted others. They have upheld the principle that sometime the interests of journalism, even where that is merely for entertainment rather than purely for information, outweighs the rights of an individual to their image. Princess Caroline is pursuing further action before the European Court of Human Rights.

My apologies for that long digression into German law (or what little I understand of it). In short: Spreadshirt's statement about image rights is rubbish even in German law. It seems to me extremely unlikely that using a picture of a Member of Parliament taken from an election leaflet that was the subject of a notorious and important trial could fall foul of the German image right as I have explained it. Spreadshirt staff may be forgiven for not realising that (if they are based in Germany) but for knowing that Mrs Thatcher (who cast a long long shadow) was a public figure.

Matt Wardman also wondered whether there might be a problem with copyright in the original election leaflet. The short answer is that

• copyright subsists in election leaflets just as in almost everything else (there is no special exception for them);
• copying the image is therefore a potential infringement, unless there is some defence available;
• there is no “fair use” defence in English law, contrary to the situation in the United States;
• there might be a defence of fair dealing for the purposes of criticism or review (to be found in section 30 of the Copyright Designs and Patents Act 1988, on the basis that the images on the mugs are a critical work, criticising the election leaflets which brought about Mr Woolas's downfall and that they are fair because they only use a small part of the offending leaflet;
• there might also be (and in this case there really ought to be) a public interest defence.

Copyright exceptions are so open textured that it is very difficult to be certain as to any of these, but I suspect any copyright suit would look very stupid.

Final draft of ACTA is out - nothing to see here

Thanks to the Patently-O blog on the subject, I learn that the Final Draft of the Anti-Counterfeiting Trade Agreement (ACTA) has been released. The EFF's web page on the subject has some background.

Earlier drafts contained a great deal of "pick and mix" material which still up for debate between the parties. The Final Draft suggests that those differences have been ironed out (though since the deliberations have been in secret I do not know the details).

My skim read suggests that there is not much in the treaty that would require the UK government to change our copyright law either in substance or as to the procedures used to enforce it. That does not mean that ACTA won't be used as an excuse (or opportunity depending on your outlook) to make changes, but there is a sufficient amount of flexibility in the treaty and a sufficient number of weasel words, that there should be no need for it to do so.

The Patently-O blog post does a good job of summarising the feel of the treaty. My own further thoughts follow.

Measures of damages

Article 2.2(2), which survives from earlier drafts, is particularly unreasonable. It starts uncontroversially enough:

Each Party shall provide that in civil judicial proceedings, its judicial authorities shall have the authority to order the infringer ... to pay the right holder damages adequate to compensate for the injury the right holder has suffered as a result of the infringement.

in other words damages should be compensatory and aim to compensate the injured for the wrong done to them — the usual position in English law. The treaty goes on:

In determining the amount of damages for infringement of intellectual property rights, its judicial authorities shall have the authority to consider, inter alia, any legitimate measure of value submitted by the right holder, which may include the lost profits, the value of the infringed good or service, measured by the market price, the suggested retail price.

Now just how bad this is depends on quite what effect "shall have the authority to consider" will have. Logically merely because a court may consider something, does not automatically mean that the court will pay much attention to it. In practice a legislative requirement to consider a factor will often mean that a court feels obliged to give that factor more weight than it would otherwise do.

What is so odd about that is that "market price" and "suggested retail price"may be a very long way from a good measure of the actual loss suffered by a rights holder. For physical goods, production costs may make up a large part of that price, but even for digital goods, the loss effected by infringement will almost always be less than the actual price because not everyone will have been prepared to buy at that price.

It is also very unusual to have a law that requires a court to consider one of the party's evidence as to damages, but not the other. The usual practice is for the court to have one or more objective measures for awarding damages and for the parties to submit evidence as to what those damages should be.

Since, strictly speaking, an English court certainly has the authority to consider any measure of damages put forward by either of the parties, this particular article should require no change to English law.

More damages

Article 2.2(3) obliges that party's to the treaty to implement one of 3 mechanisms for establishing damages for copyright infringement. All parties would have to chose one of:

• pre-established damages (that is some fixed measure that the court can apply mechanically
• presumptions for determining the amount of damages — in other words a pre-established mechanism for computing the amount
• additional damages — that is extra damages over and above those used to compensate

Section 97(2) of the UK's Copyright Designs and Patents Act 1988 already provides for additional damages. So there is no need for change here.

In my last post on ACTA I pointed out that the United States does have a rather draconian form of statutory damages, but only awarded to those who had the presence of mind to register their copyright — surprisingly many do not. At first sight it looks like the US will have to remove that precondition or implement one of the other options for pre-computing damages.

As I said then, it seems odd to me that copyright owners should be put in a better position than most other classes of claimant in civil proceedings (who have to prove their loss in the normal way and who are generally entitled to compensation for their loss and that's all). Rights in real property are not protected in this way. Similarly, someone carelessly injured and left quadriplegic (to use an emotive example) would have to prove all their loss and would expect to obtain no more. Why should IP be so special?

Costs

Article 2.2(5) requires parties to allow courts to award the winner their costs in copyright proceedings. That seems uncontroversial from the English point of view, where "costs follow the event" but the usual US rule is that each party bears their own costs. Copyright is special. 17 USC 505 allows the prevailing party to be awarded their costs and attorney's fees, but this is restricted by which requires that the copyright be registered at the time of the infringement (or soon after where the infringement takes place shortly after publication) as a prerequisite of costs recovery. Again the US may be forced to relax this requirement as a consequence of ACTA.

Summary

There's lots more in the treaty. The criminal provisions are probably already compatible with UK law, though they are triggered by "wilful" copying on a "commercial scale", rather than the various specific situations set out in places like Section 107 of the Copyright Designs and Patents Act 1988. There are all sorts of requirements for the parties to the treaty to work together to eliminate IP infringement and even (in article 3.4) a requirement to engage in pro-IP propaganda (one wonders at a time of budget cuts why we need to spend money on this but...). As far as I can see there's not much in the treaty that needs to directly impinge on our law. What our government chooses to do in response is another matter.

Libellous freedom of information responses

For those that have yet to encounter it WhatDoTheyKnow (“WDTK”) is a website that helps members of the public make requests under the Freedom of Information Act. It displays the request and any subsequent communication (that was made via the site) between the person making the request and the public body in question. Anyone else may add comments, known as “annotations” at any stage of a request.

Like most other websites to which members of the public may contribute, WDTK has to be concerned about libellous contributions. As they note although they are forced to hide only a small proportion of the total number of requests, doing so still represents a significant effort for their volunteers. Most of the issues of libel arise either in the original request, or in subsequent correspondence including annotations made by third parties. But there is a more difficult problem where the libel is contained in the FOI response itself.

Consider the recent case of McLaughlin v Lambeth [2010] EWHC 2726 in which one of the alleged libels was contained in a “briefing report” prepared by the local authority and sent to the Department of Education. If a member of the public made a successful FOI request via WDTK for that report, WDTK's software would automatically republish it on their site. The Claimants in McLaughlin might well ask WDTK to remove the disclosed material — what then is WDTK supposed to do?

The difficulty is the classic chilling effect. WDTK are in no position to decide whether the briefing report is libellous, or whether their publication of it is defensible under some general libel defence — for example under public interest “Reynolds” qualified privilege. Unlike the commercial news media, who can take a view that profit made from publication is offset by the occasional loss of a libel suit and have the funds to insure against defamation claims, WDTK is a charity funded, volunteer run site. They are in no position to take the risk which means they cannot as robustly defend the public interest in freedom of information as they would like.

There is an absurdity about this since if one FOI request is successful then (because of the “applicant blind” approach) so ought a subsequent one. If I can obtain the briefing report under FOI, then so can you. It is unclear whether WDTK could display a message stating that a particular response had been removed because it was libellous, but that anyone can request their own copy by clicking on a particular link which would then send a fresh request to the authority. Such an approach might be a “publication” of the libel, depending on how one reads some rather old authorities.

The common law might recognise this absurdity and decide that publication of FOI responses was a form of qualified privilege. There is a line of old authorities that the publication of a fair and accurate copy of (or extract from) any register kept pursuant to statute and which by law the public are entitled to inspect attracts the defence of qualified privilege. For example publication of a copy of a county court judgment would attract common law qualified privilege. The reason for this defence was explained by Lord Esher MR in Searles v Scarlett [1892] 2 QB 56:

“The law provides that the register shall be a public document which anybody may consult for this purpose. That being so, the publisher of such a list ... is only doing for the public what they may do for themselves, and is only giving that information to the public and to tradesmen which the legislature has thought it right they should have.”

That reasoning appears to be equally applicable to republication of an FOI request. It is true that the cases are all concerned with documents or registers that the public is entitled to inspect, rather than request, but it seems to me that the right to email a public body and have a document sent in response is a very similar one and the common law reasoning could be extended if a court were properly persuaded to do so.

All this is not of much use to WDTK. The last thing they would wish to do is to litigate this question. What is interesting to lawyers is rarely rewarding to their clients. It would be much better if the question were settled by statute. Most of the old common law forms of qualified privilege of this type have been given statutory force by section 15 of the Defamation Act 1996. If any of you have the ear of government you might suggest that the addition of an exception for the publication of information released under the Freedom of Information Act (and similar legislation) should be added to part II of Schedule 1 of the Defamation Act 1996. If I am right that the common law covers this situation anyway, all such a change would so is enact in statutory form a defence which already exist.

Of course a wider reform of the law of defamation is also desirable, but failing that, this would be a useful improvement.

Government: the DEA can't be used for disconnection

Today’s big news about the Digital Economy Act is that TalkTalk have been granted permission to apply for judicial review of some of its provisions. For those unfamiliar with the process, judicial review requires two stages: first permission to apply and then the review itself. The grounds of review are varied and complex. For the legal geek the statement of facts and grounds [PDF] makes interesting reading.

What has not been discussed widely so far is the government's response to the don't disconnect us petition on the Number 10 petitions website, which includes the following statement:

“ The Digital Economy Act includes a number of measures to tackle the problem and we expect these to be successful in significantly reducing online copyright infringement. However this is an area of rapid technological change and developing consumer behaviour. The Act therefore includes a reserve power to introduce further “technical” measures if the initial measures do not succeed. These technical measures would limit or restrict an infringers’ access to the internet. They do not include disconnection.”

Are the government right? Section 124G(3) of the Communications Act 2003 (introduced by section 9 of the Digital Economy Act 2010) defines a ”technical measure“ to be one of four things:

(3)A “technical measure” is a measure that— (a)limits the speed or other capacity of the service provided to a subscriber; (b)prevents a subscriber from using the service to gain access to particular material, or limits such use; (c)suspends the service provided to a subscriber; or (d)limits the service provided to a subscriber in another way.

Clearly (a), (b) and (d) can be used for various kinds of blocking or throttling and certainly not for disconnecting a subscriber. It is (c) that is the interesting provision. The word “suspend” carries with it a strong implication of transience and not permanence. A natural reading of section 124G does appear to mean that a subscriber cannot be disconnected permanently from access to the internet and to that extent the government appear to be right.

It is unclear whether (if ever) the Number 10 petitions site actually produces useful results or a change in policy. Certainly the usual response is very much along the lines of “your petition has been noted and filed and now we will ignore it”. Here the government's response relies on an overly literal reading of the petitions title. The intent was clearly to protest at the possible removal of access to the internet whether temporarily or permanently. Six months without internet access could be a serious outcome for some.

Of course the act has been so worded that technical measures are directed at a particular service provider. The “evil pirates” will simply sail over to a new service provider well in advance of any supsension of their serve. Such a transfer could even be provided by a service provider for the benefit of their customers (perhaps automatically?). It is those on long fixed term contracts with their ISP's who will may actually suffer. Quite possibly (though I have no statistics on this) those most innocent of the way the internet works.

One positive outcome of the petitions is that, if at a later stage the government try to introduce legislation that does permit permanent disconnection, we will certainly remind them of their response.