INTELLECTUAL PROPERTY ENTERPRISE COURT
Strand, London, WC2A 2LL
B e f o r e :
| OMNIBILL (PTY) LIMITED
|- and -
|(1) EGPSXXX LIMITED (in liquidation)
(2) MR ROBERT ASHLEY CARTER
Jeremy Heald (instructed by Greenwoods LLP) for the second defendant
Hearing dates: 6 October 2014
Crown Copyright ©
Mr. Justice Birss:
Communication to the public, targeting the UK
48. The third question is whether the act of communication to the public occurs in the UK. Since the operators appear to be based outside the UK, the question is whether their acts of communication to the public are targeted at the public in the UK.
49. In considering this question, it appears from the judgment of the CJEU in Football Dataco v Sportradar at - that it is relevant to take into account, by analogy, criteria which the CJEU has treated as relevant to the issue of targeting in a number of other contexts: see Joined Cases C-585/08 and C-144/09 Pammer v Reederei Karl Schlüter GmbH & Co. KG and Hotel Alpenhof GesmbH v Heller  ECR I-12527 (Article 15 of Council Regulation 44/2001/EC of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters ("the Brussels I Regulation")); Case C-324/09 L'Oréal SA v eBay International AG  ECR I-0000,  EMLR 6 (Article 5 of Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks ("the Trade Marks Directive") and Article 9 of Council Regulation 207/2009/EC of 20 December 1993 on the Community trade mark ("the CTM Regulation")); and Case C-5/11 Donner  ECR I-0000 (Article 4 of the Information Society Directive).
50. In Pammer and Hotel Alpenhof the Court of Justice held at  as follows:
"The following matters, the list of which is not exhaustive, are capable of constituting evidence from which it may be concluded that the trader's activity is directed to the Member State of the consumer's domicile, namely the international nature of the activity, mention of itineraries from other Member States for going to the place where the trader is established, use of a language or a currency other than the language or currency generally used in the Member State in which the trader is established with the possibility of making and confirming the reservation in that other language, mention of telephone numbers with an international code, outlay of expenditure on an internet referencing service in order to facilitate access to the trader's site or that of its intermediary by consumers domiciled in other Member States, use of a top-level domain name other than that of the Member State in which the trader is established, and mention of an international clientele composed of customers domiciled in various Member States. It is for the national courts to ascertain whether such evidence exists."
51. The Claimants rely upon the following factors as indicating that the Websites, and hence the operators' acts of communication to the public, are targeted at the UK. First, there are a large number of users of each Website in the UK. Secondly, a substantial proportion of the visitors to each Website is from the UK. Thirdly, the recordings listed on each of the Websites include large numbers of both (a) recordings by UK artists and (b) recordings that are in demand in the UK. Fourthly, the default language of each of the Websites is English. In addition, in the case of KAT, it includes advertisements with prices in sterling. In my judgment KAT is reasonably clearly targeted at the public in the UK. The position is less clear in the case of H33T and Fenopy, but I reach the same conclusion.
i) the name South Africa appears in the domain name,
ii) where prices are listed they are given in South Africa Rand,
iii) the "contact us" page provides a contact telephone number prefixed with the international dialling code for South Africa (+27) and
iv) the site advertises the services of escorts located in South Africa and those services are intended to be used in South Africa.
i) The visitor traffic data;
ii) The terms and condition stated on the website;
iii) The structure and nature of the overall Escortgps site.
Terms and Conditions
"This site is operated from the United Kingdom. The courts of the United Kingdom shall have exclusive jurisdiction over all claims or disputes arising in relation to, out of or in connection with this website and its use and these terms."
Terms of Service
"Escortgps is owned and operated by EGPSXXX Ltd, a UK based company dedicated to providing a top quality, legal and ethical English escort website."
Liability of second defendant
In my judgment it is clear from this passage that "authorise" means the grant or purported grant of the right to do the act complained of. It does not extend to mere enablement, assistance or even encouragement. The grant or purported grant to do the relevant act may be express or implied from all the relevant circumstances. In a case which involves an allegation of authorisation by supply, these circumstances may include the nature of the relationship between the alleged authoriser and the primary infringer, whether the equipment or other material supplied constitutes the means used to infringe, whether it is inevitable it will be used to infringe, the degree of control which the supplier retains and whether he has taken any steps to prevent infringement. These are matters to be taken into account and may or may not be determinative depending upon all the other circumstances.
"The underlying concept for joint tortfeasors must be that the joint tortfeasor has been so involved in the commission of the tort as to make himself liable for the tort. Unless he has made the infringing act his own, he has not himself committed the tort. That notion seems to us what underlies all the decisions to which we were referred. If there was a common design or concerted action or otherwise a combination to secure the doing of the infringing acts, then each of the combiners has made the act his own and will be liable."