Wheat v Google LLC

Permission to serve a foreign defendant out of the jurisdiction requires a serious issue to be tried, a good arguable case within a jurisdictional gateway, and England and Wales to be the clearly or distinctly appropriate forum.

For copyright communication on the internet, an authorised and unrestricted publication ordinarily encompasses all internet users as the relevant public. A subsequent link or embedded display using the same technical means does not infringe unless it reaches a new public or uses a different technical means. Search-result prioritisation and directing users to hotlinking websites do not, without more, infringe copyright.

Christopher Wheat appealed against the refusal of Chief Master Marsh to permit service of his copyright claim against Google LLC out of the jurisdiction. The claim concerned Google’s indexing and caching of photographs published without access restrictions on Mr Wheat’s website, and search results which directed users to third-party hotlinking websites.

The Chief Master dismissed the application, holding that the copyright claim did not satisfy the relevant jurisdictional requirements and that Google could rely on a safe-harbour defence. The appeal concerned the narrowed claim based on communication to the public under section 20 of the Copyright, Designs and Patents Act 1988, the jurisdictional gateways, and forum.

1. Disposition. The appeal was dismissed. England and Wales was clearly the appropriate forum, and there was a good arguable case that the claim fell within both limbs of gateway (9) and gateway (11) in Practice Direction 6B. Those questions were distinct from whether the claim had real merit.
2. Three-stage jurisdictional test. The court applied the test stated in Altimo Holdings and Investment Ltd v Kyrgyz Mobil Tel Ltd [2011] UKPC 7: a serious issue to be tried; a good arguable case within a relevant gateway; and England and Wales as the clearly or distinctly appropriate forum.
3. Copyright communication. Hotlinking was carried out by third parties and was lawful. The issue was therefore whether Google’s conduct constituted an unlicensed communication under sections 16 and 20 of the Copyright, Designs and Patents Act 1988. Applying Svensson v Retriever Sverige AB, Case C-466/12, [2014] Bus LR 259, BestWater International GmbH v Mebes and Potsch, Case C-348/13, and GS Media BV v Sanoma Media Netherlands BV, Case C-160/15, the claimant had to show either a communication to a new public not covered by his licence or communication by a different technical means.
4. Because the website was freely and unrestrictedly accessible, all potential internet users formed the relevant public for communication by the same technical means, namely the internet. The alleged conduct therefore was not an unlicensed communication. The allegation that Google attributed ownership to hotlinking sites was unsupported, and mere prioritisation of search results was not an act restricted by section 16.
5. It was unnecessary to decide Google’s reliance on the safe-harbour provisions in regulations 17 to 19 of the Electronic Commerce (EC Directive) Regulations 2002. The appeal was dismissed, with consequential matters including costs adjourned.

• High Court (Chancery Division): Chief Master Marsh dismissed the application to serve Google out of the jurisdiction and dismissed the claim, in a judgment dated 26 March 2018, [2018] EWHC 550 (Ch).
• High Court (Chancery Division): On 15 January 2020, His Honour Judge Keyser QC dismissed the appeal. Consequential matters, including costs, were adjourned.