Jaani Riordan appeared for the respondent (“Google”) in this appeal against a decision of Chief Master Marsh refusing to grant the appellant, Mr Wheat, permission to serve Google out of the jurisdiction.
Mr Wheat operated a website to which he had uploaded photographs and articles that he had authored. He discovered that third parties were “hot-linking” to certain photographs in a way that made the images appear to originate from those third parties’ websites. If an internet user used Google Image Search to search for an image, the search results would include links to the hotlinking websites. Mr Wheat claimed that this redirected traffic away from his website.
Mr Wheat accepted that the third parties’ hotlinking was entirely lawful. He also accepted that he had given consent to Google to index and cache the content of his website so that it would be shown in search results. However, he contended that he had not given consent to Google to use the cached content to enable internet users to access the content via the hotlinking websites, rather than his own. He therefore alleged that Google had engaged in unauthorised acts of communication to the public contrary to section 20(2)(b) of the Copyright, Designs and Patents Act 1988.
The Court dismissed Mr Wheat’s appeal and agreed with Google’s submissions that the communications in question were not to a “new” public and not by a new technical means. Therefore, applying recent CJEU authorities on hyperlinking and copyright, they could not constitute a communication to the public. Chief Master Marsh’s judgment was therefore upheld and the appeal was dismissed.