Omnibill (Pty) Ltd vEgpsxxx Ltd & Anor

Copyright infringement may occur where a website is targeted at the UK, even though it is also targeted at another country. Targeting is a multi-factorial question assessed in all the circumstances. A website, or different parts of it, may be directed at several countries simultaneously.

Relevant factors include the website’s content and structure, visitor data, language, contact details, domain name, pricing and the nature of the services offered. Mere accessibility in the UK is insufficient.

An individual may be personally liable for authorising infringement where their conduct amounts to granting or purporting to grant the right to carry out the infringing act. A director may also be a joint tortfeasor where, through common design or concerted action, they make the infringing acts their own.

The claimant owned copyright in photographs displayed on its South African escort-services website. Copies appeared on a competing website operated through the first defendant, a UK company owned and controlled by the second defendant.

The first defendant admitted reproducing and communicating substantial parts of the works but denied UK infringement, contending that the relevant website and South African sub-domain were directed only to South Africa. The claimant alleged that the second defendant was personally liable as an authoriser and joint tortfeasor.

The central issues were whether the relevant website activity was targeted at the UK and whether the second defendant was personally liable for the company’s infringements.

1. UK targeting. The court applied the approach in EMI v BSkyB [2013] EWHC 379 (Ch). Targeting is a multi-factorial question. It may be assessed by reference to the website’s content, the inherent nature of the services, visitor numbers and other surrounding circumstances. A substantial proportion of UK visitors is not necessarily determinative, but supports a finding of UK targeting.
2. A website can be targeted at more than one country. The fact that the relevant sub-domain was directed towards South Africa did not establish that it was not also targeted at the UK. Different parts of a website may likewise be targeted differently. The court considered the global structure of the site, its UK-facing terms, visitor data and the commercial value of UK traffic. It found that the website and South African sub-domain communicated reproductions to the public in the UK.
3. Authorisation. Following Twentieth Century Fox v Newzbin [2010] EWHC 608, authorisation means granting or purporting to grant the right to do the relevant act. It extends beyond neither mere enablement nor assistance or encouragement. The circumstances may include the relationship between the parties, the means of infringement, inevitability of infringement, retained control and steps taken to prevent it. The second defendant personally authorised the transfer and communication of the infringing material.
4. Joint tortfeasorship. Applying MCA v Charly Records [2002] FSR 26 and Sabaf v Meneghetti [2002] EWCA Civ 976, a director’s constitutional role alone is insufficient for joint liability. Here, the second defendant was the only person through whom the company could act, knew of the copyright complaint, agreed to establish the new website and directed the transfer of its content. It would be unreal to deny personal liability.
5. The claim therefore succeeded against both defendants.