Pro Sieben Media A.G. v Carlton U.K. Television Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Robert Walker,Lord Justice Henry,Lord Justice Nourse |
| Judgment Date | 17 December 1999 |
| Judgment citation (vLex) | [1998] EWCA Civ J1217-26 |
| Docket Number | CHANF 97/1283/3 |
| Court | Court of Appeal (Civil Division) |
| Date | 17 December 1999 |
[1998] EWCA Civ J1217-26
Lord Justice Nourse
Lord Justice Henry and
Lord Justice Robert Walker
CHANF 97/1283/3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
(Mr Justice Laddie)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr M Silverleaf QC and Mr M Vanhegan (instructed by Messrs Henry Hepworth, London WC1) appeared on behalf of the Appellant Defendants.
Mr M Howe QC and Miss C May (instructed by Messrs Denton Hall, London EC4) appeared on behalf of the Respondent Plaintiff.
Thursday, 17th December 1998
This is an appeal from an order of Laddie J made on 31 July 1997 after the trial of an action for copyright infringement. Laddie J held that Carlton UK Television Ltd (Carlton) and Twenty Twenty Television Ltd (Twenty Twenty), the defendants below and the appellants in this court, had infringed the copyrights of Pro Sieben Media AG (Pro Sieben), the plaintiff below and the respondent in this court. The main infringement established was the inclusion of a 30—second extract from a German television programme broadcast by Pro Sieben on 27 August 1996 in a programme called 'The Big Story—Selling Babies' broadcast in this country on 29 August 1996. The latter programme was made by Twenty Twenty and was broadcast by Carlton. There was another infringement in the taping of the whole of Pro Sieben,s programme (which was a magazine programme called TAFF) in order to select the extract to be used.
In reaching that conclusion the Judge rejected the appellants' reliance on the defence of fair dealing under s. 30(1) or s. 30(2) of the Copyright Designs and Patent Act 1988 (the 1988 Act). Section 30 of the 1988 Act is in the following terms.
(1) Fair dealing with a work for the purpose of criticism or review, of that or another work or of a performance of a work, does not infringe any copyright in the work provided that it is accompanied by a sufficient acknowledgement.
(2) Fair dealing with a work (other than a photograph) for the purpose of reporting current events does not infringe any copyright in the work provided that (subject to subsection (3)) it is accompanied by a sufficient acknowledgement.
(3) No acknowledgement is required in connection with the reporting of current events by means of a sound recording, film, broadcast or cable performance.
"Sufficient acknowledgement" is defined in s. 178 as
"an acknowledgement identifying the work in question by its title or other description, and identifying the author unless -
(a) in the case of a published work, it is published anonymously;
(b) in the case of an unpublished work, it is not possible for a person to ascertain the identity of the author by reasonable inquiry."
The following summary of facts is taken from the fuller statement in the judgment below, to which reference may be made for further detail. Although criticism has been made of the Judge for his treatment of some of the evidence bearing on the states of mind of individuals in Carlton and Twenty Twenty, there is no challenge to the accuracy of his statement of the primary facts.
Early in August 1996 it became known that Ms Mandy Allwood was pregnant with eight live embryos, as a result of fertility treatment. She was then about 17 weeks pregnant. The father was her boyfriend Mr Paul Hudson. Her pregnancy received wide publicity and her lawyers approached and engaged the services of a well-known public relations consultant, Mr Max Clifford. On his advice Ms Allwood entered into various contracts including one giving the News of the World exclusive rights in the United Kingdom in respect of interviews.
Pro Sieben is the third largest television company in Germany. It broadcasts by way of terrestrial television, satellite and cable. Its satellite broadcasts (made from Luxembourg by way of the Astra 1 A satellite) can be received with reasonable quality in parts of the United Kingdom. One of Pro Sieben,s regular programmes is a daily magazine programme called TAFF which runs for about 30 minutes.
On 20 August 1996 Pro Sieben made an agreement with Mr Clifford giving it the exclusive right to broadcast in Germany an interview with Ms Allwood. She and Mr Hudson were interviewed and filmed together. The interview was conducted in English but broadcast with a voice-over in German. It did not attack or criticise Ms Allwood or Mr Hudson (who at that time were receiving mixed publicity, some favourable and some unfavourable).
The filmed interview and the other filmed material were edited so as to produce three items to be broadcast, including a nine-minute item for the TAFF programme (the TAFF report) which was broadcast on 27 and 28 August 1996. The TAFF report was not limited to film of Ms Allwood and Mr Hudson. It included film of an interview with her specialist, a distinguished obstetrician, who gave his opinion that it would be dangerous if Ms Allwood persisted in her stated intention to continue her pregnancy with all eight embryos, without any selective termination of pregnancy. One of the filmed scenes included in the TAFF report, near the beginning, was a 30-second clip of Ms Allwood and Mr Hudson visiting a toy shop to buy eight teddybears. This was filmed at a shop in Wimbledon, the locality in which Ms Allwood was being housed in seclusion. The idea of going into the shop was that of Pro-Sieben,s reporter but the idea of buying teddies was Mr Hudson,s.
Carlton is a well-known television company broadcasting in England. Its flagship current affairs programme 'The Big Story' was a 25-minute programme broadcast at 7.30 p.m. on Thursdays. Mr Michael Morley of Carlton was the commissioning editor for the series. Programmes in the series were made for Carlton by Twenty Twenty, an independent production company based in London. Ms Dorothy Byrne, who is the series editor of 'The Big Story' and had editorial responsibility for the 'Selling Babies' programme, worked on a freelance basis for Twenty Twenty. She was closely involved in the decision to make the programme and in making it. The programme (the Carlton programme) was made under considerable pressure of time and was broadcast on Thursday 29 August 1996.
The Judge heard oral evidence, particularly from Mr Morley and Ms Byrne, as to their intentions (and those of others in Carlton or Twenty Twenty) in making the Carlton programme. However as that evidence, and the Judge's treatment of it, are matters of controversy on this appeal, it is better to proceed at once to a summary of the programme itself. The Judge saw a video of the Carlton programme and the relevant part of the TAFF report in open court and had the video (as well as transcripts of the two sound tracks, one in translation) available for reference while he was considering his judgment. This court has had the same facilities.
The programme was presented by Mr Dermot Murnaghan, who introduced the programme as follows,
"Tonight, how to make big money selling your private life to the press. Your relatives' private lives. The private lives of your friends or former partners. Our secret cameras go on the trail of the people cashing in on the life of Mandy Allwood. Like her former husband who, for ten thousand pounds is ready to dish the dirt."
There followed a brief clip from a secretly filmed interview with Mr Simon Pugh, Ms Allwood's former husband; a longer clip of the same interview was used later in the programme. Thus the programme focused at once on Ms Allwood but it also featured some other individuals whom Mr Murnaghan referred to as
"ordinary people who, when something extraordinary happens in their lives, now see it as a way of making huge sums of money."
The other persons interviewed were a man who had been struck by a racehorse at Ascot after he had had too much drink and wandered onto the course; the mother of a baby which had been abducted from St Thomas' Hospital in London and eventually recovered after being missing for 17 days; the parents of sextuplets born in Cleethorpes in 1993; a woman walker who in 1994 was rescued after surviving very severe weather conditions in the Cairngorms (she received money for interviews but gave it to rescue services); and a holidaymaker who was attacked by a shark in the Red Sea and was saved (after suffering serious injuries) by a school of dolphins. Interviews with these persons were interspersed with material relating to Ms Allwood.
In three places in the Carlton programme its makers contrasted their position with that of the practitioners of 'cheque-book journalism' at whose activities the programme was directed. Near the beginning Mr Murnaghan spoke to the camera,
"Over the last ten days lots of people have been making lots of money out of Mandy Allwood and her eight babies.
We're not going to try to interview Mandy, her Doctor doesn't think the media circus is good for her."
Halfway through the programme was a short interview with Ms Allwood's sister who, Mr Murnaghan said, had agreed to talk to the programme "for free". Near the end of the programme, by way of introduction to the 30-second extract from the TAFF report, he said,
"We proudly present to you for free this first British showing of Mandy and Paul's exclusive which cost German television fifty thousand pounds.
After ten days of muck-raking, a sanitised version of the truth, tightly controlled by Max Clifford."
The 30-second extract was shown partly with Mr Murnaghan's comments as a...
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