Publications

European IP Bulletin, Issue 1, April 2003 - Hot Topics

HOT TOPICS

The Right to Privacy in the Context of CCTV Surveillance - Peck v The United Kingdom (ECtHR, Application No.44647/98 of 28 January, 2003) [The European Court of Human Rights (ECHR)]

The unauthorised disclosure of CCTV footage by a public authority may constitute a violation of an individual’s right to privacy under Article 8 of the European Convention on Human Rights.

The case concerned the disclosure to the media by Brentwood Borough Council of CCTV footage recording Mr Peck in possession of a knife in a public place. The Council disclosed the footage for the purpose of publicising the success of CCTV in preventing the commission of crimes, even though the applicant himself was not charged with any criminal offence.

The ECHR, in deciding that the unauthorised disclosure by the Council infringed Mr Peck’s right to respect for his private life, held the following:

• "private life" is a broad concept and it can extend to a person’s presence in a public place, like a street;
• a person’s awareness of being recorded is a relevant factor;
• the fact that Mr Peck was not participating in a public event and was not a public figure was a relevant factor; and
• the fact that Mr Peck had not foreseen at the time of recording that the Council would disclose the CCTV recording to the print and broadcast media was also a relevant factor.

The ECHR accepted that the Council had the statutory power to disclose CCTV footage and that legitimate aims could be achieved by such a disclosure, e.g. crime prevention and deterrence. It held, however, that the English public law doctrine of "irrationality" did not in this case provide sufficient vindication of the rights of individuals guaranteed by the Convention. At the relevant time (1995), no domestic remedy existed for such an infringement in English law (this is a pre-requisite for a remedy in the ECHR), as the Human Rights Act 1998, Data Protection Act 1998 and Regulation of Investigatory Powers Act 2000 were not in force, hence allowing the ECHR to accept jurisdiction.

The ECHR has not called into doubt the legality of CCTV recording by public authorities per se; however it has recognised that an individual’s right to privacy must be given serious consideration whenever a disclosure of such footage is contemplated.

Breach of an individual’s right to privacy by exploitation or misuse of their personal data can be a costly mistake under the new regime introduced by the Data Protection Act 1998. As has been shown by Naomi Campbell’s action against the Mirror newspaper under the Data Protection Act 1998 if a data controller breaches the obligations imposed on them to the detriment of a data subject, then the subject has the right to claim for unlimited non-punitive damages.

UK Courts Allow Service Out of Jurisdiction in Douglas v Hello! [2003] EWCA Civ 139

This case raises interesting issues about whether acts committed in a foreign jurisdiction can give rise to liability in England under the doctrine of joint tortfeasance. Long arm jurisdiction was established and permission was granted by the Court of Appeal to join a photographer who was alleged to have breached confidence and statutory duty under data protection legislation. The allegation that transmitting a photograph over telephone lines was held to be an actionable breach of data protection legislation.

Actors Michael Douglas and Catherine Zeta-Jones are claiming damages for breach of confidence or privacy on the grounds that Hello! Magazine (the publishers and distributors of the magazine are respectively the first and second defendants) published unauthorised photographs of their wedding in the UK.

They claimed that Philip Ramey – a well-known US photographer who had provided the photos to Hello! – was liable as a joint tortfeasor with respect to the publication in the UK. The Court of Appeal held that the required jurisdictional link had been established to join Ramey into the proceedings.

The claimants had applied without notice under CPR 6.20(8) for, inter alia, breach of statutory duty under the Data Protection Act 1998 or CPR 6.20(15) for equitable relief for breach of the duty of confidentiality.

CPR 6.20(8)(a) allows service out of the jurisdiction with the permission of the court if a claim is made in tort where damage is sustained within the jurisdiction, while CPR 6.20(15) allows service for restitution claims where the defendant’s alleged liability arises out of acts committed within the jurisdiction. Ramey argued that the claims against him were of insufficient weight to justify service out of jurisdiction.

Laddie J held in December 2002 that no reasonable allegation of actionable wrongdoing had been made against Ramey, whose actions were lawful under New York law and that there was insufficient cause to raise a case of joint tortfeasance. A claim form served out of jurisdiction on Ramey was set aside.

On appeal, the Court of Appeal followed Seaconsar Ltd v Bank Markazi [1994] 1 AC 439, in considering whether there was an arguable case that the court had jurisdiction for the claims against Ramey. In February 2003 it reversed Laddie J’s decision.

The claimants had alleged that Ramey was involved in a premeditated plan to invade the wedding and take photographs to later sell to Hello!. Laddie J had considered evidence that the claimants said linked Ramey with the other defendants, and that they said suggested that he had supplied some, if not all, of the photographs published. Laddie J had found that the fact that Ramey had obtained the photographs and passed them to Hello! did not give rise to a case for joint tortfeasance.

The Court of Appeal disagreed. When considering the issue of confidentiality and privacy, it held that, there is a good arguable case that the English courts had jurisdiction within either CPR 6.20(8) or CPR 6.20(15) as the essential act complained about was the publication of the photographs in England. In essence, "there is a good case that the proper law of the tort (or of the right in restitution for breach of the duty of confidentiality) is in effect the law of the place of publication".

It was also held that there was an arguable case that Ramey as the alleged author of the photographs (or least the person who arranged for them to be taken) is a joint tortfeasor responsible for their publication.

On the issue of data protection, the court said that whether Ramey had breached the statutory duty by transmitting the photos to Hello! via an ISDN line should be determined in the trial and that it was a good arguable claim. Hence, Ramey remains a joint defendant.

European Commission Proposes the Establishment of a European Network and Information Security Agency

On 10 February 2003 the European Commission published a proposed Regulation for the establishment of a new European regulatory body to be called the "European Network and Information Security Agency". The background to this proposal is the increased reliance by industry and society on communication networks and information systems and the perceived need for a pan-European response to deal with potential security threats. The broad aim of the proposed agency will be to create a common understanding in Europe on information and network security related matters. It is envisaged that the agency will have both an advisory and a co-ordinating function. It will be a centre of expertise where both member state and EU institutions can seek advice on technical matters relating to security. The draft provisions of the Regulation deal mainly with the organisational and management structure of the agency. It is proposed that it will become operational by 1 January 2004 and that it will function for an initial period of five years. The continued existence of the agency after that date will depend on the outcome of an evaluation of its performance that will be carried out by the Commission.

Vitamins cartel – Fines imposed by EC Commission

The Commission decision of 21 November 2001 concerns the infringement of Article 81(1) of the EC Treaty (Article 85 of the Treaty of Rome) and Article 53 of the EEA Agreement due to unlawful concerted practices of 13 different producers of 12 types of vitamins across Europe and the Far East. The cartel operation centred on the preparation and implementation of an annual "budget" to stabilise the world market share for each producer, compensation arrangements, target and minimum prices and meeting structures. Fines were reduced (in one case by 100%) for those who co-operated with the EC Commission.

The first of these meetings took place in Basel in the late 80’s between Roche and BASF. During the preceding years the cartel was extended to incorporate other firms including Aventis and Solvoy. Eisai was also persuaded to join enabling the European producers to raise the price levels in Europe without the fear of being undercut by this Japanese producer.

Co-operation arrangements such as the one described which have as their object the restriction of competition by means of price fixing, output limitation or sharing of markets will be deemed most harmful as they directly interfere with the competition process. The fact that the companies had high market shares meant that the commission found the infringement of Articles 81(1) and 53(1) by the companies as very serious.

Fines were imposed on all of the participating undertakings. Under Section B of the Commission’s leniency notice, Aventis was granted 100% reduction in fines due to its role in being first to give the commission decisive evidence to the existence of the international cartel.

Roche’s and BASF’s fines were increased by 50% and 35% respectively due to their dominant role in the cartel and their collective aim to eliminate all effective competition between them. However under section D of the leniency notice Roche’s and BASF’s fine was significantly reduced as they had fully co-operated with the commission in its investigation. Roche was finally fined €462 million, BASF €296.16 million; the other companies being fined lesser amounts.

Can GM Crops Be Commercially Grown

On the horizon for 2003 are two important steps that will precede any announcement from the British government on whether it will allow the commercial cultivation of genetically modified (GM) crops in the UK. First is the publication of the first set of the results from the Farm Scale Evaluations (FSEs). Second is the public debate on broader issues surrounding GM technology.

Government regulations prevent any commercialised growing of GM crops unless it can be confident that it will not pose a significant risk to either human health or the environment. The FSEs are part of the analytical framework in assessing the safety of cultivating GM crops.

The FSEs evaluate the impact of herbicide use associated with GM crops on farmland wildlife. Once these results are publicly available, they will be presented to the Advisory Committee on Releases to the Environment for advice on their implications. The Government has stated that if the FSEs indicate a harmful environmental impact, it will oppose their commercialisation in the EU. However, if that is not the case, the Government recognises that a number of issues would still need to be addressed.

The Government has taken steps to address the broader GM issues. Cognizant of its need to obtain independent strategic advice on GM, the Government set up the Agriculture and Environment Biotechnology Commission (AEBC) in 2000. The AEBC, in conducting a detailed analysis of the FSEs and duly assessing the broader issues surrounding GM technology, published a report called "Crops on Trial." This report served as a springboard for the public debate that is scheduled to commence this autumn. The debate has been carefully organized and is actually the first strand of the tripartite dialogue the government wishes to have with the nation. The second strand is a review of the scientific issues and the third is an overall cost-benefit analysis.

What the Government wishes to accomplish by setting up the debate is to "provide people with the opportunity to debate the issues openly and reach their own judgements." Additionally the government has stated that it is "committed to a genuine, balanced discussion, and also to listening to what people say." However, a well-founded criticism of the legitimacy of that "commitment" then exists in its plans to forge ahead with licensing the commercial use of GM crops before the FSEs results are publicly available and indeed the public debate. This action has already been branded as "premature" by the Scottish and Welsh administrations. It will be interesting to see how the licensing issue will be reconciled when the debate begins.

This debate is part of an on-going debate at EU level and within WIPO, where the refusal of the EU to sanction GM crops remains a major source of friction with the US.

"Equitable Remuneration" Under the Rental and Lending Rights Directive (92/100/EC)

Where a broadcast includes a performance embodied in commercial phonogram, Article 8(2) of the EU Directive on Rental and Lending Rights (92/100/EEC) requires a single ‘equitable remuneration’ to be paid for the use by the broadcaster, to be shared between phonogram producer and artists. The highest Court of Appeal of the Netherlands referred Stichting ter Exploitatie van Naburige Rechten [SENA] v Nederlandse Omroep Stichting [NOS] to the ECJ under Article 234 EC for a preliminary ruling on the interpretation of the undefined term ‘equitable remuneration’. The ECJ held that this term falls to be interpreted by national courts.

The case involved a dispute as to interpretation of ‘equitable remuneration’ in Netherlands Law on related rights (Wet op de naburige rechten, 1 July 1993, as amended by law of 21 December 1995, Staatsblad 1995, p653), between the Netherlands Broadcasting Association (NOS) and the Association of Producers and Importers of Image and Sound Media (SENA, a collecting society), who were representing the producers and artists. Prior to implementation of the Directive, the broadcasters and producers’ organisation had a longstanding agreement. After implementation the parties could not agree on the quantum of ‘equitable remuneration’.

The ECJ in decision C-245/00, held that since ‘equitable remuneration’ was an independent autonomous provision, it was to be interpreted uniformly throughout the EU. However, the ECJ stated that if there was no contractual arrangement between the parties, then the term ‘equitable remuneration’ was to be interpreted by the national courts of the member states; each state applying appropriate criteria for its own territory, which assures adherence to the Directive, EU Law and the Community Concept. With the Directive being silent as to methods of calculation, the ECJ declined to lay down a uniform mechanism.

Rather, the ECJ, relying on Article 12 of the Rome Convention, held that what is equitable be viewed as enabling a proper balance to be achieved between the interests of performing artists and producers in obtaining remuneration for the broadcast of a particular phonogram, and the interests of third parties in being able to broadcast the phonogram on reasonable terms. It also stated that the remuneration in consideration for use of a commercial phonogram, in particular for broadcasting purposes, "...is equitable is to be assessed, in particular, in the light of the value of that use in trade."

This conclusion appears to be somewhat vague and it now rests with the national courts to interpret it, with the possibility of idiosyncratic approaches being applied in each member state.

EC Proposes Harmonising IP Directive to Fight Piracy and Counterfeiting

The European Commission has presented a proposal for a Directive on the enforcement of intellectual property rights. The proposed Directive is intended to harmonise national laws on the means of enforcing intellectual property rights, and to establish a general framework for the exchange of information between responsible national authorities. It is particularly aimed at reducing counterfeiting and piracy by reducing differences in member states’ legislation concerning the enforcement of intellectual property rights, reinforcing measures against offenders, and acting as a deterrent to those engaged in counterfeiting and piracy.

"Pirates and counterfeiters are in effect stealing from right holders the fair payment they deserve for their work," said internal market Commissioner Frits Bolkestein. "If we don’t stamp that out, the incentives for industrial innovation and cultural creativity will be weakened. That would threaten Europe’s competitiveness and its cultural diversity and dynamism. So we have to get tough with the pirates and counterfeiters and make sure they can find no safe havens in the EU. The sooner we implement this proposal the better will be our defences against piracy," he said.

The proposed Directive covers infringements of intellectual property rights that have been harmonised within the EU, such as copyright, trade marks and designs. It concentrates on infringements carried out for commercial purposes or that would cause significant harm to right holders, and is based on the most effective elements of legislation already found in member states.

The proposed measures would require all member states to provide for injunctions to halt the sale of counterfeit pirated goods, provisional measures such as precautionary seizures of suspected offenders’ bank accounts, evidence-gathering powers for judicial authorities, and powers to force offenders to pay compensatory damages to right holders.

It also requires member states to criminalise infringements of intellectual property rights, and to punish offences with criminal sanctions such as imprisonment.

It is likely that the UK will be held to be already compliant with many of the requirements of the Directive.

The proposal follows a "TRIPs plus" approach and complements the recent proposal for a Regulation to facilitate customs seizures of counterfeit goods from outside the EU.

It will now go to the European Parliament and the EU’s Council of Ministers for adoption under the "co-decision" procedure.

Click here to return to the Summary page, or on any of the headings below to see the full case notes for that topic:

COPYRIGHT | PATENTS | TRADE MARKS