The High Court has found copyright infringement following the use of images published within the defendant’s kiss and tell book detailing the claimant’s sexual relationship and his relationship with his wife and children, including his divorce, and his physical health.

BACKGROUND

Gareth Bull and his then wife won a much publicised £41 million pounds on the lottery back in 2012 and subsequently bought a villa in Tenerife. Mr Bull and his wife then separated in 2016, and Mr Bull began a romantic relationship with Donna Desporte who ran a bar in Tenerife at the time.

The relationship between Mr Bull and Ms Desporte ended in early 2017 and in November of that year Ms Desporte published a book Google Me No Lies. The book was to be an autobiography that centered around her relationship with Mr Bull. The book was published as an e-book and subsequently in hardcopy form.

Upon application by Mr Bull an interim non-disclosure order was then obtained which prevented further publication of the information in issue.

THE CLAIM

There were two parts to Mr Bull’s Claim.

The first was in relation to the misuse of private information contained within several passages within the book. The information detailed the sexual relationship between the couple- details of their sexual relationship, Mr Bull’s relationship with his ex-wife and his children, as well as Mr Bull’s physical health.

The second claim was in relation to the publication of several photographs within the book that Mr Bull claimed was an infringement of copyright.

Mr Bull stated that he had taken the photographs himself and sent them privately to Ms Desporte during their relationship, and as such, retained the copyright to them. Mr Bull sought a permanent injunction from publishing the specific passages and photographs and damages.

The case was heard my Mr Justice Julian Knowle during March 2019 and judgment given last month.

JUDGMENT

In relation to the misuse of private information claim, Knowle J considered the balancing act between Article 10 (freedom of expression) and Article 8, (right to private life).  The judge noted that Mr Bull had a reasonable expectation of privacy in respect of the information on the basis that the information was very personal to Mr Bull and found in Mr Bull’s favour.

With regards to the copyright claim, the judge again found for Mr Bull. Reminding the court of the law, Knowle J stated AT [91] that:

In his capacity as the photographer, the Claimant is the first owner of the photograph: s11(1). As the owner of the copyright, the Claimant has the exclusive right to issue copies of the work to the public: s16(1)(b). The issue to the public of copies of the Photographs is restricted: s18(1).

He found that the circumstances in which Mr Bull had taken and sent the photographs to Ms Desporte (sent in private Facebook messenger conversations) did not qualify as the granting of permission to publish to the world as “he did not give her permission to use them, and I find that no such permission can be inferred from the circumstances in which they were sent, namely, private social media conversations between two people involved in an intimate sexual relationship” [68].

With regards to damages for the copyright infringement, due to the modest nature of the infringement and without any evidence of commercial value of the photographs Knowle J assessed damages at £50.

The permanent injunction sought was deemed as potentially unnecessary – as Ms Desporte had agreed to remove the photographs and as such, that claim for the injunction was adjourned.

The judge encouraged Ms Desporte to give undertakings “to the court in the form of an order not to use the Photographs in any future edition of the Book, the need for an injunction will fall away. If not, the Claimant has liberty to restore the claim for an injunction” [174].