‘Stop, thief!’ Privacy and copyright give chase

During a burglary on the night of 29–30 March a laptop was stolen. On the laptop there were images of its owner and others. The laptop’s owner successfully applied for an interim injunction preventing these images from being sold and published. The injunction was based not only on infringement of privacy but copyright infringement too – a friend had made an assignment of copyright to the laptop’s owner. Presumably an account of profits in a copyright claim of this nature could add substantially to the damages.

In yesterday’s judgment, TUV v Persons Unknown, Mr Justice Eady considered how many media companies should be given notification of an application for an injunction not to communicate stolen data. Since Sir David Eady is responsible for many English privacy law judgments, it was no surprise that he found himself quoting a previous judgment of his to reach a conclusion. ‘Taken at face value,’ he went on to say, ‘it is hardly surprising that a reader would infer from this passage that there is indeed an obligation to give prior notice to all relevant third parties.’ However, not prepared to take his own words at face value, Sir David then quoted Sir Charles Gray’s interpretation of his words:

‘ … Eady J cannot have been contemplating an obligation being imposed on individual claimants, who may be of limited means, to arrange through their legal advisers to serve what might be a substantial body of evidence on a large number of media non-parties. It seems to me that the obligation to serve them must, as a matter of common sense and economy, be confined to those media organisations whom the claimant has reason to believe have displayed an interest in publishing the story which the claimant is seeking to injunct.’

So did Eady J take his own words at face value or follow Sir Charles’s view?

‘It is probably appropriate to have in mind the court’s objective in these cases; namely, to provide a fair and practical balance between the potentially competing Convention rights of the relevant protagonists. As I pointed out in X & Y, it is necessary to take account of “a proper consideration for the Art.10 rights of media publishers” as well as paying due regard to the rights of an applicant under Article 6 and Article 8. That is what arises in all of these cases. When the court is confronted with a need to balance competing Convention rights, it will rarely be appropriate to adopt a blanket approach or apply a rule of thumb. Usually, it will be right to arrive at a conclusion in the light of an “intense focus” upon the particular facts: see e.g. Re S (A Child).’

He concluded that ‘the law should only impose an obligation to notify those who are already believed to have shown some interest in publishing.’

So in arriving at a decision on this point, a judge should balance media publishers’ Article 10 right (Freedom of Expression) and an applicant’s Article 6 (Right to a Fair Trial) and 8 right (Respect for Private and Family Life). But there is one right missing from this list: First Protocol, Article 1 (Protection of Property), i.e. copyright.

More privacy plus copyright cases are likely in the future. Millions of photos are uploaded to social networking sites on a private basis but can (and are) easily downloaded and shared outside of the private circle. The human rights that are balanced will have to budge up to make room for another right. But what if the Conservative Party scrap the Human Rights Act? Too late to wipe, these rights are backed up – by the Treaty of Lisbon.