Christopher Wheat v Google LLC
| Jurisdiction | England & Wales |
| Judge | Keyser |
| Judgment Date | 15 January 2020 |
| Neutral Citation | [2020] EWHC 27 (Ch) |
| Docket Number | Appeal Ref: CH-2018-000224 |
| Date | 15 January 2020 |
| Court | Chancery Division |
[2020] EWHC 27 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
CHANCERY APPEALS (Ch.D.)
On appeal from HC-2016-002540 (Chief Master Marsh)
Intellectual Property List (Ch.D.)
Judgment dated 26 March 2018 – [2018] EWHC 550 (Ch)
Order dated 31 July 2018
Rolls Building, 7 Rolls Building,
Fetter Lane, London, EC4A 1NL
HIS HONOUR JUDGE Keyser QC
sitting as a Judge of the High Court
Appeal Ref: CH-2018-000224
Chris Pearson (instructed under Direct Access) for the Appellant
Jaani Riordan (instructed by Pinsent Masons LLP) for the Respondent
Hearing date: 28 November 2019
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
HIS HONOUR JUDGE Keyser QC
JUDGE Keyser QC:
Introduction
This is an appeal, brought with permission given by Marcus Smith J on 21 May 2019, from a decision of Chief Master Marsh on 26 March 2018 refusing to allow the appellant, Mr Wheat, to serve the respondent, Google LLC (“Google”), out of the jurisdiction.
The claim was commenced on 2 September 2016. Originally, Google was named as the first defendant, and Monaco-Telecom S.A.M. (“MT”) was the second defendant. Google is incorporated in Delaware in the United States of America, and MT is incorporated in The Principality of Monaco. On 12 December 2017 Chief Master Marsh set aside an earlier permission to serve MT and declared that this court did not have jurisdiction to hear the claim against MT. Permission to appeal against that decision was refused. Some parts of the case advanced by Mr Wheat against Google were based on an allegation that Google was liable as a joint tortfeasor with MT. Marcus Smith J refused permission to appeal against the order of 26 March 2018 on the grounds relating to that alleged joint liability. In addition, some of the allegations against Google that were relied on before the Chief Master have not been pursued on this appeal. The result is that, for the purpose of this judgment, I am only concerned with a claim that Google has infringed Mr Wheat's copyright in certain photographs in a particular manner that I shall explain below.
The remainder of this judgment will be structured as follows. First, I shall set out the basic law concerning service out of the jurisdiction as it applies in this case. Second, I shall explain the way in which Mr Wheat's case against Google is advanced. Third, I shall summarise briefly the decision of the Chief Master, so far as it relates to the grounds of appeal advanced before me. Fourth, I shall identify the issues that arise for determination on this appeal. Fifth, I shall discuss the issues.
I am grateful to Mr Pearson (who did not appear before the Chief Master) and to Mr Riordan (who, here and below, appeared solely for the purpose of disputing jurisdiction) for their helpful written and oral submissions.
Service out of the Jurisdiction
The circumstances in which service of the claim form out of the jurisdiction does not require permission are set out in CPR rr. 6.32 and 6.33. Neither of those rules applies in the present case. Rule 6.36 provides:
“In any proceedings to which rule 6. 32 or 6.33 does not apply, the claimant may serve a claim form out of the jurisdiction with the permission of the court if any of the grounds set out in paragraph 3.1 of Practice Direction 6B apply.”
The grounds in paragraph 3.1 of PD 6B include the following that are relevant for consideration on this appeal:
“(9) A claim is made in tort where –
(a) damage was sustained, or will be sustained, within the jurisdiction; or
(b) damage which has been or will be sustained results from an act committed, or likely to be committed, within the jurisdiction.”
“(11) The subject matter of the claim relates wholly or principally to property within the jurisdiction, provided that nothing under this paragraph shall render justiciable the title to or the right to possession of immovable property outside England and Wales.”
In Altimo Holdings and Investment Ltd v Kyrgyz Mobil Tel Ltd [2011] UKPC 7, [2012] 1 WLR 1804, Lord Collins of Mapesbury, delivering the judgment of the Board on an appeal from the High Court of the Isle of Man (I substitute in the quotation a reference to this jurisdiction), said at paragraph 71:
“On an application for permission to serve a foreign defendant (including an additional defendant to counterclaim) out of the jurisdiction, the claimant (or counterclaimant) has to satisfy three requirements: Seaconsar Far East Ltd v Bank Markazi Jomhouri Islami Iran [1994] 1 AC 438, 453–457. First, the claimant must satisfy the court that in relation to the foreign defendant there is a serious issue to be tried on the merits, i.e. a substantial question of fact or law, or both. The current practice in England is that this is the same test as for summary judgment, namely whether there is a real (as opposed to a fanciful) prospect of success: e.g. Carvill America Inc v Camperdown UK Ltd [2005] 2 Lloyd's Rep 457, para 24. Second, the claimant must satisfy the court that there is a good arguable case that the claim falls within one or more classes of case in which permission to serve out may be given. In this context ‘good arguable case’ connotes that one side has a much better argument than the other: see Canada Trust Co v Stolzenberg (No 2) [1998] 1 WLR 547, 555–557, per Waller LJ, affirmed [2002] 1 AC 1; Bols Distilleries BV v Superior Yacht Services (trading as Bols Royal Distilleries) [2007] 1 WLR 12, paras 26–28. Third, the claimant must satisfy the court that in all the circumstances [England and Wales] is clearly or distinctly the appropriate forum for the trial of the dispute, and that in all the circumstances the court ought to exercise its discretion to permit service of the proceedings out of the jurisdiction.”
Mr Wheat's Claim
Mr Wheat is the sole proprietor of a business based in Surrey that until 2018 operated a website called “theirearth.com” (“the Website”). It was broadcast on the internet, latterly on a server network hosted by Knipp Medien und Kommunikation GmbH in Dortmund, Germany, using a single IP address. The Website was a news media site, focusing on issues of ecology and sustainability, with a large number of original articles and photographs and a directory to other websites. Mr Wheat claims that he wrote the articles and took the photographs and that he is the owner of the copyright in both the articles and the photographs on the Website. For the purpose of this appeal that claim has not been challenged and I assume it to be correct. The only copyright asserted is within the United Kingdom under the Copyright, Designs and Patents Act 1988 (“ CDPA”). Access to the Website was free and unrestricted.
Google needs no introduction. It has a widely used search engine known as Google Search. My understanding of how Google Search works is principally taken from the statement of Robert Michael Graham of Pinsent Masons LLP, Google's solicitors. That statement was before the Chief Master, who quoted extensively from it and accepted its evidence. In the following sub-paragraphs, I shall only provide a summary of that evidence with occasional quotations of relevant text.
1) A search engine cannot search the vast number of pages on the internet in response to an individual search; that would be unacceptably slow and would not be feasible from a technical standpoint. Therefore Google Search compiles an index of the content of webpages and searches that index in response to an individual search. The index is created with the use of software known as a web crawler, which examines the content of webpages and saves and stores that content in a cache. The cache will include thumbnail copies of all images examined by the web crawler.
2) The web crawler does not examine every single webpage. It sends requests to servers hosting webpage content. If the owner of a website has configured it to respond to such requests, the requested content will be sent to Google's servers for indexing. “The web crawler does not visit any webpages where a webmaster has instructed Google not to index its website …; it indexes webpages only where servers have been configured to respond to its requests. … The caching is carried out with the implicit authorisation of the website publishers, since the act of publishing their content without restrictions on access implies that they agree that the information will be available to all, including search engines such as Google Search.” Website publishers are able to control or prevent indexing of their content by such means as source code, meta tags or “robot.txt” conventions. Naturally, most webmasters want their sites to be indexed, because if they are not indexed they cannot be located through search engines. The configuration of Mr Wheat's Website constitutes an instruction to all web crawlers to index its content.
3) “Google's temporary caching of webpages is undertaken in a neutral, technical and automatic manner, in that Google Search's algorithms do not modify the cached webpages in respect of their content.” The cache is stored only for a limited period of time and “is rapidly updated at each exploration of the web by the web crawler to ensure that Google Search results reflect the evolution of webpages published online”.
4) When a user submits a query on Google Search, results are ranked in order of relative relevance to the query. Relevance is assessed by the use of algorithms, which rely on numerous signals to return relevant results; these signals “include factors such as how often content on a website has been refreshed and the quality of user experience provided by a particular...
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