Mackie (t/a 197 Aerial Photography) v. Askew

Factual and Procedural Background

The Plaintiff, a professional photographer residing and operating his business in The City (Troon, Ayrshire), claimed ownership and copyright of certain aerial photographs displayed on his website. The Defendant, residing in The State (Wemyss Bay, Inverclyde), operated a commercial holiday letting website within the jurisdiction of Greenock Sheriff Court. The Plaintiff alleged that the Defendant infringed his copyrights by publishing two of his photographs on her website without permission, causing loss and damages. The Plaintiff initiated a claim for reparation in Ayr Sheriff Court, asserting jurisdiction based on the location of his business and the place where the harm was suffered.

The Defendant challenged the choice of court, arguing that the appropriate jurisdiction was Greenock Sheriff Court, where she resided and where the infringing website was managed. A preliminary hearing on jurisdiction was held, and the Sheriff dismissed the claim for want of jurisdiction, concluding that the harmful event (uploading the photographs) occurred outside the court's jurisdiction. The Plaintiff appealed this decision, leading to the present judgment by Sheriff Principal Lockhart.

Legal Issues Presented

1. Did the Sheriff err in dismissing the claim for want of jurisdiction?
2. Whether Ayr Sheriff Court had jurisdiction to hear a copyright infringement claim where the Plaintiff's business was located and where the alleged harm was suffered, despite the Defendant residing and operating the website outside that jurisdiction.
3. Interpretation of the phrase "place where the harmful event occurred" under Schedule 8, para 2(c) of the Civil Jurisdiction and Judgments Order 2001 and its application to internet-based copyright infringement.

Arguments of the Parties

Plaintiff's Arguments

• The Plaintiff asserted ownership and copyright of the aerial photographs, which were published without permission on the Defendant's website.
• He relied on provisions of the Copyright Designs and Patents Act 1988, emphasizing that copyright is a property right and that unauthorized publication constitutes infringement and breach of statutory duty.
• The Plaintiff invoked Schedule 8, para 2(c) and (i) of the Civil Jurisdiction and Judgments Order 2001, arguing that jurisdiction lies where the harmful event occurred or where the property is situated, here being The City (Troon).
• He referred to the case of Bonnier Media Ltd v Gregg Lloyd Smith and Kestrel Trading Corporation to support the proposition that a website operator potentially commits a delict in any country where the website is accessible, and thus harm occurs where the website is viewed.
• The Plaintiff contended that the harm was felt at his business location, justifying Ayr Sheriff Court's jurisdiction.
• He also argued that the Defendant's entering of appearance did not preclude a challenge to jurisdiction.

Defendant's Arguments

• The Defendant did not dispute Ayr Sheriff Court's jurisdiction per se but questioned the appropriateness of the Plaintiff's choice of court, suggesting Greenock Sheriff Court was proper due to her residence and place of business.
• She contended that the harmful event, namely uploading the photographs, occurred in Wemyss Bay, outside Ayr Sheriff Court's jurisdiction.
• The Defendant's husband noted that the Defendant had engaged another party to prepare the website and was not personally involved in the uploading of photographs.
• He relied on the general small claims rule that claims are usually heard in the court where the defender resides or has a place of business.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by identifying the nature of the harmful event as the posting (uploading) of the photographs on the Defendant's website, equating this to publication rather than the mere viewing of the images. The harmful event was thus the act of publication, not the subsequent access by users.

While the initial Sheriff found no jurisdiction because the posting occurred outside the court's area, the Sheriff Principal reconsidered the issue, emphasizing the dual potential jurisdiction under Schedule 8, para 2(c) of the Civil Jurisdiction and Judgments Order 2001: jurisdiction may lie either where the harmful event occurred or where the damage was sustained.

The court relied on European jurisprudence and authoritative commentary to confirm that both the place of the event causing damage and the place where damage is felt are valid bases for jurisdiction. Given that the Plaintiff's business and the place where harm was suffered were within the Ayr Sheriff Court's jurisdiction, the court held that jurisdiction was proper there.

The court also interpreted the Defendant's defence as a challenge to jurisdiction, which was properly addressed by a hearing on that issue. The court rejected the Plaintiff's preliminary argument that the Defendant's entry of appearance precluded such a challenge.

Applying the principles from the cited cases, including the internet-specific considerations from Bonnier Media Ltd, the court concluded that the Defendant's act of uploading the photographs potentially constituted a delict in any jurisdiction where the website was accessible, including Ayrshire.

Consequently, the court found that Ayr Sheriff Court had jurisdiction to hear the claim for damages based on copyright infringement and breach of statutory duty.

Holding and Implications

The court sustained the appeal, answering the question posed in the sheriff's stated case—"Did I err in dismissing the claim for want of jurisdiction?"—in the affirmative. The interlocutor dismissing the claim was recalled, and the cause was remitted to the sheriff to fix a full hearing.

No expenses were awarded to or against either party in respect of the appeal procedure.

The direct effect of this decision is to allow the Plaintiff to pursue his copyright infringement and breach of statutory duty claims in Ayr Sheriff Court. The ruling clarifies that jurisdiction in internet-related delict cases may be based on either the place where the harmful event occurred or where the damage was suffered, aligning with European legal principles. No new precedent beyond the application of existing jurisdictional rules was established.