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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Wheat v Monaco Telecom SAM & Anor [2017] EWHC 3150 (Ch) (12 December 2017) URL: https://www.bailii.org/ew/cases/EWHC/Ch/2017/3150.html Cite as: [2017] EWHC 3150 (Ch) |
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CHANCERY DIVISION
London EC4A 1NL |
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B e f o r e :
____________________
CHRISTOPHER WHEAT |
Claimant |
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- and - |
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(1) ALPHABET INC./GOOGLE INC. (2) MONACO TELECOM S.A.M. |
Defendants |
____________________
Tom Cleaver (instructed by Paul Hastings (Europe) LLP) for the Second Defendant
Hearing dates: 31st October 2017
____________________
Crown Copyright ©
See Also: Wheat v Alphabet Inc / Google LLC & Anor [2018] EWHC 550 (Ch) (26 March 2018)
Chief Master Marsh:
i. That the claimant does not, as required, have a much better argument on the issue of whether the claim falls within one of the jurisdictional gateways in CPR PD6B.
ii. That in any event, the claim has no reasonable prospect of succeeding. Monaco Telecom submits that the claim does not meet this test on the merits and, in addition, it is (a) an abuse of the court's process within the principle identified in Jameel v Dow Jones [2005] QB 946 and (b) the claim is time-barred in respect of all, or most, of the conduct relied upon.
iii. That England and Wales is not the proper place in which to bring the claim.
iv. That the order made on 30 January 2017 was procured by material non-disclosure.
i. The claimant says Monaco Telecom has converted the content of his website and is liable at common law for that act. At the hearing, I indicated to the claimant that such a cause of action is unlikely to prosper and is one which did not require further development. It is not in doubt that under the current state of the law, the common law tort of conversion does not apply to intangible property such as copyright; see Clerk & Lindsell 21st edition paragraph 17-36.
ii. The claimant also alleges that Monaco Telecom was in breach of a common law duty of care owed to him and that breach of this duty has caused him mental distress. The claim does not set out any basis at all upon which such a duty is said to have arisen and it is not a claim which has any real prospect of success.
"The Claimant's first cause of action is also against the Second Defendant [Monaco Telecom] that through the deliberate use and set up of a Monaco-Telecom server post (November 20, 2008) they copied and issued to the public the Infringement (an unauthorised complete copy of theirearth.com body of work) and thus infringed the Claimant's copyright in the Work under …. the CDPA."
"2.3 February 9, 2008 - Google's cache results for the theirearth.com domain shows that Monaco-Telecom had pointed the theirearth.com domain to the blank domain at theirearth.net - this was a deliberate act to help attribute theirearth.com html created pages to a Monaco-Telecom URL and not to the theirearth.com domain as seen by Google. This was a negative action by Monaco-Telecom against the Claimant happening prior to the move of the website to Knipp in Germany (November 20, 2008) and indicative of Monaco-Telecom's true motives.
2.4 November 20, 2008 to beyond February 6, 2011. After the move of the website theirearth.com to [Knipp], Monaco-Telecom S.A.M. ran a duplicate unauthorised copy of the Claimant's website on Monaco-Telecom's Servers. Google began to index two sites in its search results-one with the URLs theirearth.com (the Claimant's site) and one with URLs www.theirearth.com the copy illegitimately broadcast by Monaco-Telecom. There is still evidence in Google search in December 2016 that there are duplicate html pages being broadcast, and not from the theirearth.com legitimate server at Knipp - this last item is subject to a full disclosure by Google as to which IP address(es) Google is indexing that duplicated theirearth.com content from in the years 2012-2016 and a confirmation of the duplication starting November 20, 2008 by Monaco-Telecom as already confirmed by the Claimant's hosting company [Knipp].
Monaco-Telecom Maintaining an Illegitimate CNAME Copy Of theirearth.com
2.4 [sic] Google allowed their global search engine to knowingly index and send search results to the illegitimate copy of www.theirearth.com on Monaco-Telecom's production servers. Monaco-Telecom broadcast the Claimant's site from the URL address prodl3.hosting.monaco.mc setting up the server with a CNAME alias of www.theirearth.com.
- May 9, 2009 evidence - external monitoring website robtex.com scans Monaco-Telecom servers and finds CNAME alias server record assigned to the URL www.theirearth.com meaning Monaco-Telecom is broadcasting the theirearth.com URL long after the move of the site to Knipp nearly six months after the move that occurred on November 20, 2008.
2.5 Google is indexing the entire Monaco-Telecom duplicate copy of www.theirearth.com from the illegitimate Monaco-Telecom server address starting on November 20, 2008 running to beyond February 6, 2011. Google sending the majority of search results to the illegitimate copy.
2.6 August 4, 2009 - Google formally informed by email and by fax sent to Google's Susan Wojcicki, Vice President Products Google that they were indexing an illegitimate copy of theirearth.com off of Monaco-Telecom's production servers but they did not reply to the Claimant nor stop this practice [sic]
2.7 Both Google and Monaco-Telecom diverted the majority of the website traffic away from the legitimate theirearth.com server in Germany to Monaco-Telecom's servers.
2.8 The copying of the entire intellectual property of theirearth.com by Monaco-Telecom continued beyond February 6, 2011 (the day Knipp was instructed to block access from Monaco-Telecom's production server for the IP range 195.78.0.0 – 195.78.31.25. [sic]
2.9 July 24, 2010 - the Claimant wrote an email to Frederic Fautrier (Technical Director Monaco-Telecom) outlining the performance issues and Monaco-Telecom's involvement. He never heard back specifically from Frederic Fautrier, but received a letter from Monaco-Telecom's lawyers denying any involvement with the copying of his site.
IP Block of Monaco-Telecom Causes Correct Indexation on Knipp Servers
2.10 Once a full IP range block was made against the Monaco-Telecom server, immediately (the day after-February 7, 2011) the real theirearth.com links at the Knipp server were given full indexation by Google for a few weeks (using the command site: theirearth.com) as found on the legitimate theirearth.com server at Knipp in Germany. (i.e. absolute evidence that Monaco-Telecom was still copying and broadcasting the entire theirearth.com site on February 6, 2011.)
2.11 The Knipp location for the theirearth.com URL was clearly established in the worldwide name server registries as the legitimate DNS look-up location for the site theirearth.com and also for www.theirearth.com, and by November 20, 2008, the site had clearly 100% propagated to the new server address away from Monaco-Telecom's production server. There was never a legitimate nor evident public DNS name server broadcast for theirearth.com or www.theirearth.com domains at Monaco-Telecom after the official transfer of the site to Knipp on November 20, 2008 just a CNAME alias. Even the registered domain name of theirearth.com itself was transferred to Knipp before the website move on November 20, 2008."
[The emphasis is taken from the particulars of claim]
i. He had taken a photograph of Lewis Hamilton, who was Formula 1 World Champion throughout 2009. He noticed that the image from his site was number one in Google Image Search and the corresponding link was in first or second position in the UK google.co.uk. However, there was no traffic to theirearth.com's server in Germany. He says the huge traffic for the keyword search "Lewis Hamilton 2009" was being diverted elsewhere by Google. He says in his witness statement:
"This analysis indicates that most of the significant traffic to theirearth.com was being diverted away form our legitimate server at Knipp Germany (IP Address: 195.138.61.130) by Google and to sent [sic] another unauthorised serving IP address. This behaviour is consistent with the evidence of our website being hosted by Monaco-Telecom S.A.M. Therefore Monaco-Telecom S.A.M. was hosting www.theirearth.com as a clone of the real server at Knipp in Germany."
ii. On 10 June 2009, the claimant uploaded three new articles at the Grimaldi Forum Press Room from the Monte-Carlo Television Festival and viewed them on Monaco Telecom's internet in Monaco. When he checked later the three articles were not on the Knipp server.
iii. In 2011, the theirearth.com site included images of a Nissan electric car. He estimates that the image would have generated at least 100,000 views per month. There was no traffic to the theirearth.com nameserver in Germany.
"It seems two different versions of the site were shown e.g. in the Google Cache or Robtex at May 2009.
One version was showing the correct customer's content and images (from 195.138.61.130) [the authorised IP address with Knipp] and used the correct label theirearth.com the other version labelled as www.theirearth.com did show almost duplicate content, but with some different images, and that content was labelled as being cached from 195.78.26.68.
Additionally, when searching for 'theirearth' not only the correct version was referenced within the search engines search results but also the false page version (from 195.78.26.68) with an almost similar page ranking as the correct website from 195.138.61.130."
"Lumeneo Launches its SMERA Electric Car – theirearth
theirearth.com/index.php/news/lumeneo-smera-electric
1 May 2009 – the Lumeneo SMERA is a 2 passenger lithium ion battery powered electric car in a 1+1 passenger cabin configuration (the passenger sits …"
"Google's generation of page titles and descriptions (or "snippets") is completely automated and takes into account both the content of a page as well as references to it that appear on the web. The goal of the snippet and title is best to represent and describe each result and explain how it relates to the user's query.
…
If we've detected that a particular result has one of the above issues with its title, we may try to generate an improved title from anchors, on-page text, or other sources. However, sometimes even pages with well- formulated, concise, descriptive titles will end up with different titles in our search results to better indicate their relevance to the query. There's a simple reason for this: the title tag as specified by a webmaster is limited to being static, fixed regardless of the query. Once we know the user's query, we can often find alternative text from a page that better explains why that result is relevant. Using this alternative text as a title helps the user, and it also can help your site."
i. Monaco Telecom disputes there was any such record in place at that time or any other time. Due the regulatory obligations it is now impossible to verify what DNS records were in place in May 2009.
ii. Mr Thorne makes the point that there would have been no reason to have had a CNAME record in place, particularly if Monaco Telecom is right that its copy of the website no longer existed at that date.
iii. There is some evidence based on emails dating from August 2009 that Monaco Telecom had deleted any DNS information concerning theirearth.com and this would have included any CNAME record.
iv. Monaco Telecom does not accept that the Robtex search demonstrates there was a CNAME record on its servers. Mr Thorne says: "It appears to show the results of a check of the content of the authoritative nameservers displayed". This was Knipp in 2009 and if there was a CNAME in place it may simply show that Knipp failed to update the relevant records.
v. If there was a CNAME record in place, its effect would have been that users whose internet access is provided by Monaco Telecom would be redirected to the server specified in the CNAME record. There is no evidence of what the result of such redirection would have been. Monaco Telecom says it could have been a blank page.
Paragraph 3.1(3): Necessary or proper party to an existing claim.
Paragraph 3.1(7): Breach of contract committed within the jurisdiction.
Paragraph 3.1(9): Tort where damage was sustained within the jurisdiction or results from an act committed within the jurisdiction.
Paragraph 3.1(11): Claim relating to property within the jurisdiction.
Paragraph 3.1(16): Claim for restitution where the liability arises out of acts committed within the jurisdiction or the enrichment is obtained within the jurisdiction.
"In my view on its proper construction the rule cannot be construed as confined to claims relating to the ownership or possession of property. It extends to any claim for relief (whether for damages or otherwise) so long as it is related to property located within the jurisdiction. This construction vests in the court a wider jurisdiction, but since the jurisdiction is discretionary the court can and will in each case consider whether the character and closeness of the relationship such that the exorbitant jurisdiction against foreigners abroad should properly be exercised."
Much better argument
"[17] When the court is deciding whether it has jurisdiction, it must scrutinise most jealously the factor which gives rise to jurisdiction. As Pearson J held in Societe Generale de Paris v Dreyfus Bros (1859) 29 ChD 239, 242-243:
"it becomes a very serious question … whether this court ought to put a foreigner, who owes no allegiance here, to the inconvenience and annoyance of being brought to contest his rights in this country, and I for one say, most distinctly, that I think this court ought to be exceedingly careful before it allows a writ to be served out of the jurisdiction."
[18] The court has jurisdiction if a "good arguable" case is shown that the case falls within one of the cases set out in the CPR (known as "jurisdictional gateways"). I consider in paras 27 and 71 below what provisions of the CPR are relevant. At this point, I need to explain what is required to show a quotes good arguable case". To establish whether a good arguable case has been made out that the claim falls within one or more of the jurisdictional gateways, the court has to apply what has become known as the "Canada Trust gloss". The defendant argues that the judge failed to do this. The Canada Trust gloss is drawn from the following passage in the judgement of Waller LJ in Canada Trust Co v Stolzenberg (No 2) [1998] 1 WLR 547, 555:
"It is also right to remember that the 'good arguable case' test, although obviously applicable to the ex parte stage, becomes of most significance at the inter partes stage where two arguments are being weighed in the interlocutory context which, as I have stressed, must not become a 'trial'. Good arguable case reflects in that context that one side has a much better argument on the material available. It is the concept which the phrase reflects on which it is important to concentrate, i.e. of the court being satisfied or unsatisfied as it can be having regard to the limitations which an interlocutory process imposes that factors exist which allow the court to take jurisdiction." (Emphasis added)
[19] The approach of Waller LJ was approved by Lord Steyn in the House of Lords in that case at [2002] 1 AC 1 and by Lord Rodger of Earlsferry in the Privy Council in Bols Distilleries BV (trading as Bols Royal Distilleries) v Superior Yacht Services Ltd [2007] 1 WLR 12, para 28. However, the Canada Trust gloss requires explication. It is not easy to apply where there is a disputed issue of fact. Neither party has given disclosure or been cross-examined. Waller LJ held that the court "must be concerned not even to appear to express some concluded view as to the merits".
[20] In Antonio Gramsci Shipping Corpn v Recoletos Ltd [2012] 2 Lloyd's Reports 365, Teare J stressed the importance of not deciding issues which would have to be decided at trial. He held at para 39:
"I am bound to apply the 'Canada Trust gloss' whilst being careful not to prejudice the determination of the factual issue at trial. The 'Canada Trust gloss' does however advise the court to concentrate on whether the court is satisfied or unsatisfied as it can be having regard to the limitations which an interlocutory process imposes that factors exist which allow the court to take jurisdiction. It seems to me that in a case where there is, in the main, a conflict of evidence which cannot be resolved without appearing to conduct a pre-trial it is particularly important that the court asks itself whether the factors exist which allow the court to take jurisdiction."
[21] In my judgement, when applying the Canada Trust gloss, we are entitled to bear in mind that Waller LJ also held that (1) the test was flexible (at p 555H); (2) the court should not be drawn into deciding issues of fact (at p 555F), and (3) the decision is to be made on the material available (at p 555F).
[22] Our conclusion will not be binding at trial. However, the issue (as in Issue 2 below) may simply not matter at trial, in which case this is the only chance the parties have to air it.
[23] As submitted on behalf of Lady Brownlie, when looking for "the much better argument" the court is concerned with the question of relative plausibility. But there is also an absolute standard to be met. The words used by Waller LJ, namely a "much better argument" mean more than that, on the material available, the case is arguable. There must be some substance to it: since we are deciding a question of jurisdiction, the evidence must achieve an acceptable level of quality and adequacy. However, the standard to be attained is not that of succeeding on the balance of probabilities because there is no trial: see per Flaux J in Erste Group Bank AG, London Branch v JSC "VMZ Red October" [2013] EWHC 2926 (Comm).
[24] In any event, the court is not bound to accept a witness statement which is inherently defective, and certainly should not do so if it conflicts with other incontrovertible evidence or is unreliable for some other tangible reason, or, as Christopher Clark J put it in Cherney v Deripaska (No 2) [2009] 1 All ER (Comm) 333, para 44, "wholly implausible"."
PD6B 3.1(9)
"… mere (or even knowing) assistance or facilitation of the primary infringement is not enough. The joint tortfeasor must have so involved himself in the tort as to make it his own. This will be the case if he has induced, incited or persuaded the primary infringer to engage in the infringing act or if there is a common design or concerted action or agreement on a common action to secure the doing of the infringing act".
"… in relation to claims in tort the requirements of 3.1(9)(b) obliges the court to look at the tort in a common sense way, and ask whether damage has resulted from substantial and efficacious acts committed within the jurisdiction, regardless of whether or not such acts have been committed elsewhere."
PD6B 3.1(11)
Reasonable prospect of success
"Subject to the following provisions of this section, if on the date when any right of action accrued for which a period of limitation is prescribed by this Act, the person to whom it accrued was under a disability, the action may be brought at any time before the expiration of six years from the date when he ceased to be under a disability … notwithstanding that the period of limitation has expired."
Proper forum
Material non-disclosure
Material non-disclosure
Gateway 3.1(9)
No reasonable prospect of success
i. He was under a disability, in the sense that an impairment or disturbance of the brain made him unable to make decisions in relation to the conduct of litigation;
ii. He was under that disability at the time the relevant cause of action accrued. On his case the cause of action accrued in November 2008 when he says Monaco Telecom was no longer entitled to keep a copy of the website.
iv. He remained under that disability continuously until at least 1 September 2010.
Appropriate forum
Conclusion