Publications
European IP Bulletin, Issue 4, August/September -
Copyright
Copyright
12. Court Order Made Against Unknown Person
In Bloomsbury Publishing Plc and JK Rowling v Newsgroup Newspapers Limited [2003] EWHC 1087 Ch, Laddie J held that court orders can be made against a person whose name is unknown where he can be identified by some other means.
Tight security was put in place to prevent any leaks of the plot of the latest Harry Potter novel, Harry Potter and the Order of the Phoenix, before its 21st June 2003 publication date. Nevertheless, a number of copies somehow escaped from the print‑works where it was being produced. Two were found in a field and returned to the publisher by The Sun newspaper. However, at the time of the trial it seemed that at least one other copy was at large because an anonymous person contacted various tabloid newspapers (who did not accept the offer) by telephone and offered to sell them chapters of the book. The book had probably been stolen so, ordinarily, the Court would have been quite willing to grant an injunction against the caller to preserve confidentiality and to prevent the infringement of copyright and the conversion of stolen property. However, the caller could not be identified as he refused to give personal details and made his calls from a call‑box.
Nevertheless, Laddie J agreed to grant a “John Doe” order against “The person (or persons) who have offered the publishers of The Sun, The Daily Mail and the Daily mirror newspapers a copy of the book Harry Potter and the Order of the Phoenix by JK Rowling.” He identified four factors that must be satisfied before a court can grant an interlocutory injunction: (1) the claimant must have a good arguable case against the defendant; (2) the order must be in terms that clearly state what the defendant can and cannot do; (3) it must be possible to identify the defendant against whom the order is sought and (4) the order will only be effective against a person who, when made aware of the terms of the order, will understand that it applied to him.
The last two factors are potentially problematic when the name of the person who is the subject of the order is unknown. However, these difficulties are not insurmountable. Usually the defendant’s name is the most convenient way of identifying him so that he knows he is the subject of the injunction. Nevertheless, as injunction can be made against a person whose name is unknown, as long as he can be identified clearly enough by other means e.g. by reference to his alias or photograph. In fact, the third and fourth factors are satisfied in any situation where (i) the order is directed at particular wrongdoers and their accomplices and (ii) the targets would understand that the injunction is directed at them. In this case, the defendant could be identified by his works (that is, the offering of the book to the newspapers) and would know that he was the target of the order.
The granting of orders against anonymous people is not unprecedented. Laddie J point to EMI Records v Kudhail [1985] FSR 36, where an order was made against a named individual and other unnamed individuals engaged in the same activity, Tony Blain Pty Ltd v Splain [1994] FSR 497 where an order was granted against certain unknown individuals who sold unauthorised merchandise outside concert locations and freezing orders, which are often made against third parties that are not identified at the time the order is made
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