A tawdry wrangle over the copyright in photographs which appeared on a web site providing escort services was resolved by the High Court last week in Omnibill (Pty) Ltd v Egpsxxx Ltd & Anor [2014] EWHC 3762 (IPEC). There was no dispute that copyright in the photographs used in advertisements (generally pornographic in nature) on the Escortgps web site belonged to the claimant or that copies of the photographs were taken from the claimant’s web site. The areas of dispute concerned who was actually responsible for that web site and whether the website or the relevant parts of it were targeted at the UK.
Birss J, citing Pammer, described the question of whether a web site is targeted to a particular country as a multi-factorial one which depends on all the circumstances, including things which can be inferred from looking at the content on the web site itself and elements arising from the inherent nature of the services offered by the web site. He also pointed out that the entire contents of a web site will not necessarily have to be treated in the same way. However, in this case, the judge took the view that the figures on web site traffic supported the view that a ‘substantial proportion’ of visitors were from the UK, notwithstanding inter alia that all the entries for escorts to whom the claim related were based in South Africa and gave South African telephone numbers and prices were given in rand.
The second issue to which Birss J turned was whether a Mr Carter, the second defendant and director of the Escortgps, was personally responsible for the infringing acts of the defendant company. There was some evidence that Carter was a pawn in the porn games played by a South African, van Tonder. But, as Birss J pointed out (at [64]):
Mr Carter is the only person through whom the company could act in any way at all. He knew that the first website was alleged to infringe both copyright and registered trademarks. I recognise that the copyright claim was unspecific but there are steps that could have been taken at the time to find out more about that if he had been concerned about it. He agreed with Mr van Tonder to set up the new website in the company’s name and that is what happened. It would be unreal to find that Mr Carter is not personally liable for the infringements committed by this company.
