Welcome back to the new term

As the long summer recess draws to a close, and the better heeled amongst the legal fraternity return from their yachts and vineyards to the piles of papers awaiting them on their desks, it's nice to know that some of us have been keeping the machinery of legal information in proper working order, writing up last term's cases ready to be cited in the new term's hearings, and covering the occasional pronouncements of the vacation courts.

That said, all work and no play makes Jack a dull boy and this blogger has not let the summer pass without a visit to the wonderful Yorkshire Sculpture Park, where the above photo of a piece by Henry Moore was taken. Among the many interesting works of art on display in this idyllic location (sheep and peace of mind included free of charge), one thing was, however, noticeable absent:

A stormtrooper helmet from the film Star Wars.

And it wasn't just because the piece in question had been teleported to the Supreme Court, where the above photo was taken (courtesy of the Press Association). It was because -- as their supreme Lordships and one supreme Ladyship have held in Lucasfilm Ltd v Ainsworth [2011] 3 WLR 487; [2011] Bus LR 1211 -- IT IS NOT A SCULPTURE.

The defendant, Andrew Ainsworth, had been commissioned by the claimant film-makers to create a military-style helmet for use as a prop in the sci-fi adventure series. He based his design on paintings and drawings and a clay model supplied by the defendants. When, later, he began making replicas of the helmet for public sale, the empire struck back, contending, inter alia, that the design was protected as a "sculpture" under section 4 of the Copyright, Designs and Patents Act 1988. Mann J [2009] FSR 103 did not agree, saying that since the helmet was primarily utilitarian in function it was not a sculpture and therefore the defendants had a defence under section 51 of the Act, which permits the copying of a design document or model for anything other than an artistic work. The Court of Appeal affirmed that decision [2010] Ch 503; [2010] Bus LR 904, and, in a judgment given at the end of the summer term, the Supreme Court has now agreed.

By section 4(1) of the 1988 Act a "sculpture" can be an "artistic work" "irrespective of artistic quality". The implication in this less than watertight piece of drafting must be that something not intended to be an artistic work, however good its quality, will not be a sculpture. And that seems to have been the answer here. Whether and to what extent such works require or deserve some other form of protection is ultimately a matter for Parliament, as Lord Walker JSC and Lord Collins suggest in para 48.

The case was one of a number the Supreme Court delivered at the end of term, before several of its members went on a historic visit to China. According to a press release they planned to spend five working days visiting the Supreme People’s Court and judges of the District Court in Beijing, the Law School of Beijing University and the Municipal High Court in Shanghai. Then it was off to Hong Kong, to visit the Court of Final Appeal and the High Court.

The trip took place in September, at a time when British courts are still in recess. But in Luxembourg, the Court of Justice of the European Union was busy delivering judgments. As with the Supreme Court, the most interesting in the bunch was about intellectual property rights.

"Say it with flowers" -- not adwords.

A rose by any other name would smell as sweet, according to Shakespeare, but a flower delivery service would not sell as sweet -- if it weren't called Interflora. So that was one of the Google "adwords" that Marks and Spencers bought, to help attract customers to their own, clone flower delivery service.

When internet users entered the word “Interflora” or a similar expression as a search term in the Google search engine, an M & S advertisement appeared under the heading “sponsored links”. Interflora brought proceedings for trade mark infringement before the Chancery Division, where Arnold J decided to stay the proceedings and refer 10 questions to the Court of Justice for a preliminary ruling. These were later whittled down to four, which the Luxembourg court answered on 22 September in Interflora Inc and another v Marks & Spencer plc (Case C-323/09); [2011] WLR (D) 281.

The court held that the proprietor of a trade mark (such as Interflora) was entitled, under article 5(1)(a) of Council Directive 89/104/EEC and article 9(1)(a) of Council Regulation (EC) No 40/94 on the Community trade mark, to prevent a competitor advertising on the basis of a keyword identical to the proprietor's trade mark where such use was liable to have an adverse effect on one of the functions of the trade mark (such as indicating origin of the goods, etc). Moreover, under articles 5(2) and 9(1)(c) respectively, the proprietor was also able to prevent such use where the competitor thereby took unfair advantage of the distinctive character or repute of the trade mark ("free-riding") or where the advertising was detrimental to that distinctive character ("dilution") or to that repute ("tarnishment").

The case is the latest in a series involving different ways in which the use (or perhaps abuse) of Google adwords has annoyed trade mark proprietors, including Google France SARL and another v Louis Vuitton Malletier SA (Joined Cases C-236/08 to C-238/08) [2011] Bus LR 1 and Portakabin Ltd v Primakabin BV (Case C‑558/08) [2011] Bus LR 1339.

Ave atque vale Tom Paine

Finally, a bit of sad news. Solace and refreshment for many of us who cover the Royal Courts of Justice may be found in the Seven Stars, an ancient and eccentric pub in Carey Street, popular with barristers and journalists alike. The pub had, until recently, a resident cat, depicted here in his court attire, and held in great esteem by the regulars. He was a Learned Cat, a worthy namesake of the great 18th century human rights activist. Recently he fell into a decline and has, sadly, passed on. Now he pads among the asphodels in the feline Elysian fields. He will be missed.

Raw Law Wars

As avid fans of the excellent Guardian law online service, we were a little baffled by their recent editorial concerning the opening up of judgments to public scrutiny. The debate about the free availability of raw law certainly deserves attention, but let’s be clear what we’re talking about.

The first point to make is that this is not about reported case law (of which ICLR is the leading provider) but about unreported judgments of the superior courts. In its editorial, published 26 September, the Guardian argues that there is an overwhelmingly strong argument for “opening up judgments to real public view and scrutiny”, by making them freely available on the internet.

This seems perfectly unobjectionable, except that the demand has in large measure already been met. The Supreme Court, its predecessors the House of Lords and the Privy Council, and a number of tribunals (such as the Competition Appeal Tribunal) all publish their judgments on their own websites, as do the European Courts of Justice and of Human Rights. Any judgments which cannot be found on a court website, together with all of those which can, are to be found freely available on the website of the British and Irish Legal Information Institute, better known as Bailii.

But according to a group calling itself Judgmental, who seem to have stung the Guardian into writing its editorial, this is not good enough, because the contents of the Bailii website are not searchable on Google. The implication is that unless something can be found on Google, it isn’t available.

The reason why judgments on Bailii cannot be searched on Google has already been explained in a response to the editorial by Adam Wagner on the UK Human Rights blog (Don't throw the Bailii out with the bathwater) also hosted by the Guardian.

But there is a wider argument about access to raw law which is worth addressing. The argument goes something like this. If justice is to be open, transparent and accountable, then there must be no barriers to anyone seeing it in action. Courts must be televised so we can see what goes on and be satisfied our tax pounds are being efficiently and fairly spent in dishing out justice. And since ignorance of the law is no defence, anyone should be able to find out what the law is without the trouble of studying and qualifying in any formal sense, or even having to spend money on a book.

Leaving aside the question whether there might be a difference between having information and being able to use it (to interpret and formulate advice on the basis of it), there is already a huge amount of raw law freely available. The Legislation.gov.uk website, delivered by the National Archive allows anyone freely to search all statutes, statutory instruments, measures etc. It is not complete but getting there. There is the Bailii website and other resources offering comprehensive (if not total) coverage of court judgments, not to mention all those courts offering cases on their own websites. And there is a surprising amount of law and legal information, including caselaw, on Wikipedia (all of it searchable on Google, presumably) as well as a number of other free resources.

If anything, therefore, the problem is not too little raw law, but too much.

The ICLR is guilty of adding to the stock of free knowledge by making a complete list of all its reported cases freely searchable on its “Case search” facility (which offers basic citator information on 77,000 cases published by ICLR since 1865), as well as providing free case summaries of recent landmark decisions in its WLR Daily service. All of this information is also accessible via Google search.

Nevertheless, Judgmental have taken it upon themselves to provide their own collection of judgments on a website that, unlike Bailii, will be searchable via Google. Unlike Bailii, the website isn’t actually working at the moment, so this may not have been the best time to start a campaign to publicise its contents.

According to Bailii’s executive director, Joe Ury:

“As far as I can tell they think they are freeing the law by merely republishing BAILII html versions of judgments on their site and allowing google to index them there. They do none of the real work of tracking down, gathering and converting judgments and just seem to be feeding off the work of others.”

He adds “Sadly, reading this article may give one the impression that only lawyers can use Bailii.” In fact, anyone can use it, and the search forms (simple and advanced) are about as accessible and straightforward as you could ask for. If a lay person knows what they are looking for, they will find it a lot easier using the Bailii search form than they would casting about for a needle in the Google haystack.

But what if the lay person isn’t aware of this marvellous resource? Well, suppose they aren’t. Where would they start? Perhaps by going to the Ministry of Justice website, which is where the Guardian thinks the judgments ought to be held, and searching for “judgment”. The results include, second on the list, an external link to Bailii.

There are other ways of reaching the not very cleverly hidden Bailii website, not least of which is the way it is hyperlinked to whenever the Guardian discusses a judgment in its brilliant online law service. Bailii is here to stay, whatever anyone says to the contrary, and if Judgmental or anyone else seeks to supplant it they will have a hard act to follow.

Judicious Reviewing

I'm reading a book

For pleasure and profit

The pleasure is variable

The profit small

I'm doing what's called

Reviewing

"Reviewing", by Paul Magrath

(from Pretext 6 (2002), ed DJ Taylor)

As an occasional freelance book reviewer (and poet) this blogger has been following the Thornton v Telegraph Media Group Ltd litigation with more than merely jurisprudential curiosity. (The case has spawned a series of judgments in both the High Court and the Court of Appeal, one of which appeared earlier this month in the Weekly Law Reports.) It is the case about the biter bit -- to the tune of £65,000. That was the amount of damages awarded to the author, Dr Sarah Thornton, against the publishers of The Daily Telegraph in respect of a review by the journalist Lynn Barber which was found to have been defamatory.

The book in question was called Seven Days in the Art World. In her particulars of claim Dr Thornton described herself as "an author, freelance writer and former full-time academic, specialising in the sociology of culture and in ethnography." The book consisted of a series of fly-on-the-wall narratives based on seven different days spent covering events in the contemporary art world. Lynn Barber is a journalist known for her sometimes less than flattering interviews and profiles of well known figures (she won Interviewer of the Year at the British Press Awards in 2002), as well as her not always adulatory book reviews. She is also the author of an autobiographical work, An Education, which has been made into a successful film. At the time she was asked to review of Dr Thornton's book, in the autumn of 2008, it seems safe to assume she was not being invited to give it an unqualified thumbs-up. That wouldn't be her style.

The review begins in a spirit of robust scepticism:

Seven Days in the Art World by Sarah Thornton: review

Confronted with reflexive ethnographic research on the art market, Lynn Barber isn't buying

Sarah Thornton is a decorative Canadian with a BA in art history and a PhD in sociology and a seemingly limitless capacity to write pompous nonsense. She describes her book as a piece of "ethnographic research", which she defines as "a genre of writing with roots in anthropology that aims to generate holistic descriptions of social and cultural worlds". She also claims that she practices "reflexive ethnography", which means that her interviewees have the right to read what she says about them and alter it. In journalism we call this "copy approval" and disapprove.

The bit in italics was described in the litigation as the "copy approval allegation" and was the subject of a complaint of malicious falsehood, as well as of defamation. Sir Charles Gray [2009] EWHC 2863 (QB) at [47] and [51] held that this "significantly misdescribed what Dr Thornton says in her book about the way she deals with interviewees". He granted her application to strike out the Telegraph's defence of fair comment. (Indeed, barbed comment might be a more accurate description.)

In her next paragraph, Barber makes what was described in the litigation as "the interview allegation":

Thornton claims her book is based on hour-long interviews with more than 250 people. I would have taken this on trust, except that my eye flicked down the list of her 250 interviewees and practically fell out of its socket when it hit the name Lynn Barber. I gave her an interview? Surely I would have noticed? I remember that she asked to talk to me, but I said I had already published an account of my experiences as a Turner Prize juror which she was welcome to quote, but I didn't want to add to.

The defamatory meanings which the review was said to contain were: (i) That Dr Thornton had dishonestly claimed to have carried out an hour-long interview with Lynn Barber as part of her research for Seven Days in the Art World, when the true position was that she had not interviewed Ms Barber at all, and had in fact been refused an interview. (ii) That [she] had given her interviewees the right to read what she proposed to say about them and alter it, a highly reprehensible practice which, in the world of journalism was known as "copy approval". (iii) That [she] had thereby shown herself to be untrustworthy and fatally lacking in integrity and credibility as a researcher and writer.

In respect of the interview allegation the Telegraph made a qualified offer of amends under section 2 of the Defamation Act 1996, which was not accepted. No such offer was made in respect of the copy approval allegation, to which the Telegraph (having had its defence of fair comment scratched out) returned in a fresh application, this time for summary judgment (ie dismissal) of that claim. That prompted a discussion of, amongst other things, the difference between personal defamation and business or professional defamation (in relation to the copy approval allegation).

Giving judgment in favour of the Telegraph this time, Mr Justice Tugendhat [2011] 1 WLR 1985 held that the imputation that Dr Thornton had engaged in the practice of copy approval was not capable of bearing any meaning defamatory in a personal sense, and that since the business of writing involved so many different standards of professionalism, it was impossible to say that a writer who wrote to (or fell below) one standard rather than another could be injured professionally by an imputation to that effect:

Absent a pleaded meaning such as hypocrisy, or a true innuendo, neither of which are pleaded in this case, I am unable to see how it can be defamatory of Dr Thornton to allege that she did not apply in her book the standards of journalists relating to copy approval. Or if it might otherwise be, then it does not overcome the required threshold of seriousness. (See para 104.)

That left intact the claim in malicious falsehood and the defamation claim in relation to the interview allegation. The case was eventually heard as a witness action by Tugendhat J, who found both claims made out on the evidence [2011] EWHC 1884 (QB). This must have been a humbling experience for Ms Barber, who claimed to have a famously poor memory (citing an assertion to that effect which she had made in her book, An Education, which had been put in evidence) but who was found to have exaggerated the paucity of her recollection and, in short, to have lied:

Mr Thwaites [counsel for Dr Thornton] challenged Ms Barber to explain why she had not checked to see whether or not Dr Thornton had interviewed her. Her first answer was her main response to this point. It was: "I didn't believe she'd interviewed me. I was pretty sure about that". But Mr Thwaites then asked how she could be sure enough not to check, given what she was claiming about her flaky memory. Under that pressure, she told what is certainly a lie. She said: "I was confused anyway, because the person I think I exchanged e-mails with was a New Yorker journalist; is that right? And here it was for a book. I wasn't quite sure that she [Dr Thornton ] was the same person". She had to accept this was a lie, because the first paragraph of the review identifies Dr Thornton as the person who had asked for an interview. (See para 96.)

In relation to the copy approval claim (in malicious falsehood), his Lordship said, at para 178:

As Mr Thwaites pointed out in submissions, judges send the draft of judgments to the parties for their advisers to submit editorial corrections and to draw attention to obvious errors. Counsel may in a few cases contend that the draft judgment does not accurately record their submissions. In very rare cases counsel may point out that words used by a judge could be misunderstood, or that they reflect adversely upon a third party when it is unnecessary and inappropriate to do so (see eg Regina (Mohamed) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2011] QB 218, para 5). Judges commonly accept corrections and alterations requested by counsel, but no one could suggest that what the judge is offering is a right of approval, as opposed to an opportunity to submit feedback. The concern of the judge is to achieve fairness and accuracy, so far as possible, in his recitation of the facts and the submissions of the parties.

No doubt the reporters of the ICLR, all of whom have submitted copies of their reports to the judges who wrote the judgments in them, will be relieved to know that that long established practice does not in any way detract from their professionalism -- rather the opposite one would assume. Law reports are not, after all, examples of "reflexive ethnography"; nor are they an "acerbic review" (Lord Justice Sedley's description of Barber's piece: [2010] EWCA Civ 510 at [1].)

Tugendhat continued, at para 179:

In my judgment, there is, as Ms Barber well understood, a distinction between quotation approval and copy approval, and no equivalence between them which is material to this case. Dr Thornton has satisfied me that she did not grant copy approval. The allegation that she did so is false, and Ms Barber knew that it was false. Ms Barber did not believe that there was any material similarity between what Dr Thornton granted to her interviewees and copy approval.

He awarded damages of £50,000 in respect of the defamatory interview allegation and £15,000 for the malicious falsehood about copy approval. The total of £65,000 was to be divided equally between the print and online editions, on the basis that "website publication is more limited in numbers, but lasts much longer, and is likely to be seen by persons using search engines to find out about Dr Thornton".

Should reviewers now be more careful? Undoubtedly. Should they now be less critical? Undoubtedly not. That is their job. The point about this case is not that Ms Barber was critical, but that she was careless, or even reckless; and that she did not check her facts, or her diary, or ask herself why Dr Thornton would have claimed to have interviewed her if she had not.

There is a long and, in the opinion of some people, respectable tradition of hatchet job reviewing. For example (pace Tugendat J in his earlier judgment) it might well be a professional libel to suggest that someone had written a kind or complimentary book review in Private Eye, which specialises in what one might call the adversarial type of review, when not parodying famous writers or exposing the backstabbing/backslapping cosiness of the literary world.

A reviewer is entitled to express an opinion, and vulgar abuse is no libel. What you cannot do is misrepresent the facts. What you must do is check them.

Thornton v Telegraph Media Group Ltd [2011] 1 WLR 1985

Law Reporting: the inside story

"A lot of people don't know much about law reporting. We all read them, of course... at least, we're supposed to read them", says legendary law blogger Charon QC, introducing his latest "lawcast" for InsiteLaw Mag in which he interviews Daniel Hoadley, a member of the Bar who went into law reporting for ICLR.

Daniel joined us a little over a year ago, having previously spent a short time with ICLR doing work experience. He came at an opportune moment. ICLR was embarking on an ambitious new project to develop a direct online subscriber service for all its publications. (Hitherto, the majority of its publications had only been available online as licensed content on third party aggregator sites.)

At the heart of the new service there was to be an online version of the best-selling Consolidated Index. Daniel became part of a team, led by the Development Editor, which turned this traditional hard copy research tool into what has now become "CitatorPlus", a dynamic online database with vastly extended scope and power as a research tool in terms of both content and functionality.

In the Michaelmas term, one of the reporters took maternity leave and Daniel was an obvious choice to cover her courts. At the time, he was essentially working out the year or so that he had to wait before he could take up the pupillage which he had already arranged. Listen to this interview to find out why, ultimately, he decided to give up that supposedly golden prospect, and a life at the junior criminal bar, and to join ICLR at this most exciting moment in its 146-year history.

Listen to the podcast

Read Daniel's Carrefax blog on Courts in Camera - or vice versa.

Register for a free trial of the new ICLR online.