Wheat v Alphabet Inc / Google LLC & Anor

Permission to serve proceedings out of the jurisdiction requires a good arguable case within a jurisdictional gateway, a serious issue to be tried with a real prospect of success, and England and Wales to be the clearly appropriate forum. A plausible evidential basis may suffice where jurisdictional facts cannot reliably be resolved. Copyright infringement is territorial: foreign infringement does not become an English claim merely because consequential loss is suffered here. Hotlinking does not itself copy a work, and accessibility of a website from England does not localise the operator’s communications here. Where website content has been made freely available for indexing, the absence of technical restrictions may amount to implicit consent to indexing and caching. A claimant who fails the jurisdictional tests cannot avoid that result by seeking deemed service or an extension of time.

The claimant, proprietor of an online news and directory business, sought permission to serve Alphabet Inc/Google LLC out of the jurisdiction in claims concerning copyright, contract and alleged diversion of advertising revenue. He alleged that Google’s indexing, caching, search ranking and hosting of third-party content infringed his copyright or made Google liable as a joint tortfeasor, and that Google’s AdSense arrangements were contractual breaches.

The court treated Alphabet Inc as wrongly joined, permitted amendment to identify Google LLC, and considered two applications for permission to serve Google in California. The issues were whether the claims passed the relevant jurisdictional gateways, whether there was a serious issue to be tried, and whether England was clearly the appropriate forum. The claimant also sought deemed service and an extension of time.

1. Applications dismissed. The claimant failed all three requirements for service out: a good arguable case within a relevant gateway, a serious issue to be tried with a real prospect of success, and England and Wales as the clearly appropriate forum.
2. Under [2012] 1 WLR 1804, as reconsidered obiter by the majority in Four Seasons Holdings Inc v Brownlie [2017] UKSC 80, a claimant must provide a plausible evidential basis for the gateway. If facts cannot reliably be assessed, that basis may suffice. The gateways nevertheless require a substantial, not merely casual or adventitious, link with England.
3. The contractual claim could not pass the threshold. The English-law AdSense version named Google Ireland Limited as contracting party, while the US version contained an exclusive California jurisdiction clause. The relevant contractual terms concerned intellectual property rights and did not create obligations relating to Google Search, diversion of advertising revenue or reassignment of copyright.
4. The copyright claims also lacked a real prospect of success. Copyright is territorial, and foreign infringement could not be converted into an English claim by loss suffered in England. Hotlinking involved no copying. Prior publication of images without restrictions, together with the ordinary operation of web crawlers, supported implicit consent to indexing and caching. Mere accessibility of a foreign website in England did not localise its communications here.
5. Section 23 of the Copyright, Designs and Patents Act 1988 concerned tangible acts of physical exhibition or distribution, not the electronic transmission alleged. The court also accepted that Google was entitled to rely on the caching and hosting safe harbours in regulations 18 and 19 of the Electronic Commerce (EC Directive) Regulations 2002.
6. England was not clearly the appropriate forum. Google’s services were provided from California, relevant evidence and witnesses were abroad, the alleged infringing acts were not shown to have occurred in England, and one contract selected California law and jurisdiction. Deemed service and an extension of time were therefore refused.

First-instance decision. No prior appellate decision is stated in the judgment.