Christopher Wheat v Google LLC
| Jurisdiction | England & Wales |
| Judge | Mr Justice Marcus Smith |
| Judgment Date | 21 May 2019 |
| Neutral Citation | [2019] EWHC 1518 (Ch) |
| Docket Number | Appeal References: CH-2018-000074 CH-2018-000224 |
| Court | Chancery Division |
| Date | 21 May 2019 |
[2019] EWHC 1518 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
CHANCERY DIVISION
On appeal from the orders of Chief Master Marsh, made pursuant to judgments [2017] EWHC 3150 (Ch) and [2018] EWHC 550 (Ch)
Rolls Building
7 Rolls Building
Fetter Lane, London
EC4A 1NL
THE HONOURABLE Mr Justice Marcus Smith
Appeal References: CH-2018-000074
CH-2018-000075
CH-2018-000224
Mr Chris Pearson appeared on behalf of the Claimant
The Defendants did not appear and were not represented
Hearing date: 21 May 2019
Approved Judgment
I have before me applications for permission to appeal two decisions of Chief Master Marsh, refusing in the case of each of the Respondents to this claim to allow the Appellant permission to serve out of the jurisdiction. The Appellant is a Mr Christopher Wheat, who is the owner and operator of a website which is known as “theirearth.com” and which I shall describe as the “Website”.
The Defendants are Google LLC (“Google”) and Monaco Telecom SAM (“Monaco Telecom”). In two decisions, [2017] EWHC 3150 (Ch) and [2018] EWHC 550 (Ch), Chief Master Marsh refused permission to serve out of the jurisdiction and/or he set aside service out of the jurisdiction that had wrongly been ordered. The applications for permission to appeal seek to revisit the question of service out, and it is contended by Mr Wheat that permission to serve out of the jurisdiction should be given in each case.
It is evident from what I have said that this is not a Brussels Regulation case, but a case of service out of the jurisdiction under the old common law rules. The requirements for permission to serve out of the jurisdiction are well known, but I articulate them now
a. First, the claimant – the party seeking to serve out – must satisfy the court that in relation to the foreign defendant in question there is a serious issue to be tried on the merits, that is to say, a substantial question of fact or law or both.
b. Secondly, the claimant must satisfy the court that there is a good, arguable case that the claim falls within one or more of the “gateways” under which service out of the jurisdiction is permitted. These gateways are set out in CPR PD 6B §3.1
c. Thirdly, the court must be satisfied that England and Wales is clearly and distinctly the proper forum for the trial of the claims.
There is naturally and unsurprisingly a close nexus between these three requirements. None of the thresholds is so high as to require a “mini-trial” or a trial-within-a-trial: but they are of course of substance.
I must also remind myself that this is an application for permission to appeal orders refusing permission to serve out. When applying my mind to these tests, I simply need to consider whether there are reasonable grounds for success on an appeal, and no higher standard than this. Mr Pearson of counsel, who appeared for Mr Wheat, stressed that I should not conduct a trial-within-a-trial, particularly where permission to appeal was sought, and I accept that submission. It is necessary to take an appropriately broadbrush view of the merits of the points being advanced, and that is what I propose to do in this case.
In each case, Chief Master Marsh declined to authorise service out of the jurisdiction or permission to serve out of the jurisdiction on all three of the requirements that I have identified. Additionally, in the case of the claim against Monaco Telecom, he found that there had been a material non-disclosure or misrepresentation by Mr Wheat, which he also relied upon to set aside the service out that had been ordered.
Mr Wheat's application for permission to appeal the orders of Chief Master Marsh have not been dealt with on the papers. Arnold J and Roth J, in the case of each separate application for permission to appeal, ordered that both applications for permission be determined at a single oral hearing, and this is that hearing.
Although the claims against the Defendants are multiple, they essentially fall into three groupings:
a. The first grouping concerns self-standing claims against Google involving – and I shall expand on this in a little detail below – the “caching” of images and the hotlinking of those images to other websites. These claims are made against Google alone, and they do not involve Monaco Telecom.
b. The second and third grouping of claims involves claims against Monaco Telecom and Google. These claims arise out of the allegedly unauthorised cloning of the Website by Monaco Telecom. The primary claims – comprising the second grouping – are therefore against Monaco Telecom.
c. However, Mr Wheat contends that Google was told about the cloned website and nevertheless continued to index the cloned copy of the Website without Mr Wheat's consent. It is therefore said that both Defendants have infringed Mr Wheat's copyright. The claims against Monaco Telecom comprise the second grouping and the claims against Google comprise the third grouping.
I should say that the claims falling within these groupings are framed in various different ways: but the case primarily advanced by Mr Wheat is based upon allegations that his copyright under the Copyright, Designs and Patents Act 1988 has been infringed.
I will begin with the first grouping of claims, that is the self-standing claims against Google described in paragraph 8(a) above. These claims involve the following factual background. As is well known, Google, amongst other things, is involved in indexing the web. The search engine that it operates worked by “trawling” web content and indexing it, so that returns on searches using Google's search engine may be returned quickly.
“Trawling” includes the caching of images that are contained upon websites that are available for access to Google's web robots. What happens is that, to take an image as the example, that image is “cached”. That is to say, a small version of that image is produced in response to a search on the Google search engine. The internet searcher can then click on that cached image and jump to what one would think is the website that is promoting and containing that image, and which has the rights to it.
The Website operated by Mr Wheat contained just over 370 images. Surrounding those images was accompanying text. Mr Wheat, so he says, owned the copyright in those images. These images were indeed indexed and cached by Google. But they were not linked to the Website. Rather the link was created with what are known as “aggregator websites” or a “link farms”. Such websites – which (on the facts advanced by Mr Wheat) – have no intellectual property rights in the images, contain hotlinks to the images on Mr Wheat's Website and doubtless to many thousands of other images on other websites. The outcome of a Google search – that is, when the cached images are presented on screen – is that the cached image links not to the website of the owner of the copyrighted image (here Mr Wheat's website), but rather links to the aggregator website or link farm.
It is in this way the benefits of putting images on the web are lost to the owner of the copyright in those images. To take an example involving the parties here, were I to invoke a search that produced an image to which Mr Wheat claims copyright, my click on that image would not take me to the Website but rather would take me to the aggregator website or link farm. That, it is said, causes real disbenefits to claimants like Mr Wheat. When I click on the cached image, Mr Wheat's website is not accessed: that of the aggregator website or link farm is. That, in turn, has implications in terms of both the profile of his own website and the revenue that he might gain from such matters as advertising revenue via Google's operated AdSense. As is well known, the revenue that is generated by way of advertising is directly linked to the volume of access to websites and the number of clicks that one receives on the website and the images and/or pages within it.
That, in a nutshell, is the factual background to the self-standing claims against Google comprising the first grouping. It is said by Mr Wheat that Google's conduct in caching images for the purposes of delivering search results constitutes an infringement of the Copyright, Designs and Patents Act 1988 because Mr Wheat has not consented to his images being used in this way. (Matters would be different if the search results linked to the Website: Mr Wheat...
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Christopher Wheat v Google LLC
...of the test in turn. Because of the unhelpful nature of the grounds of appeal themselves, it is convenient to refer to what he said: [2019] EWHC 1518 (Ch). 19 Having summarised the factual basis of the claim, Marcus Smith J addressed the first stage of the test, namely whether there was a ......