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Balancing Copyright with Human Rights

Balancing Copyright with Human Rights

Published: 06.02.13 at 16:30

A recent judgement in a case concerning compromising pictures of Kate Winslet's husband has seen Mr. Justice Briggs perform a balancing act between a claimant's rights under copyright and a defendant's right to freedom of expression under Article 10 of the European Convention on Human Rights (ECHR). In this instance Mr. Justice Briggs decided that UK copyright comes out on top.

When at the 21st birthday party of the claimant's (Mr. Rocknroll) then sister-in-law semi-naked photographs were taken of him, with his consent, by another guest named Mr. Pope.  The photographs were subsequently uploaded onto Mr. Pope's Facebook account. At the time of upload, Pope's privacy settings were set so that only his 1,500 or so "friends" could see the photographs. A later change of the privacy settings to "Public" meant that these pictures were then visible to any Facebook user.

The Sun newspaper obtained the photographs and then notified the claimant of their intention to publish them. The implausibly named Mr. Rocknroll, who changed his name in 2009 via the UK's deed poll service, sought an interim injunction as a temporary remedy to prevent the Sun from doing this. Once informed of the Sun's intention to publish the photographs the copyright was then assigned to Mr. Rocknroll by Mr. Pope, i.e. there was a transfer of ownership of the pictures from photographer to claimant, and the photos were then deleted from Facebook. Therefore, Mr. Rocknroll as the claimant was able to rely on both his right to privacy under Article 8 ECHR as well as his status as copyright owner following assignment.

The judgement largely focused on whether an individual's right to privacy (Art. 8) should take precedence over the right to freedom of expressions under Art. 10 but Mr. Justice Briggs also entered into an interesting discussion on the copyright issues of the case. This is of particular interest given the repercussions for future privacy cases involving pictures obtained from social media sites, where the copyright holder is the same person as the claimant, who wishes to protect his/her privacy.

It was held that although the terms and conditions of Facebook provide for a non-exclusive transferable licence (discussed here) in favour of Facebook this does not mean that Mr Rocknroll lacked the right as any other copyright owner, who was assigned copyright by the original copyright owner, to prevent copyright infringement by the defendant. The case indicates that copyright may be a useful tool to protect an individual's privacy.

The application for an injunction (injunction is an order to stop somebody doing something) succeeded and the Sun was restrained from publishing or copying the photographs and from publishing or otherwise communicating a description of their contents.  

This article was written by George Blacksell.

Image copyright: Premshree Oillai - some rights reserved


Please note that this article discusses the legal position in the UK at the time of publication. It provides general information only but is not to be regarded as legal advice. You must take advice from a specialist lawyer in relation to your specific circumstances. Further, you should seek additional legal advice when dealing with parties based in other parts of the world or works originating from other parts of the world as the legal position may vary.


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