Factual and Procedural Background
The Claimants, collectively referred to as "Getty," are members of a group of companies owning and operating websites such as Getty Images, containing millions of visual assets including photographs and videos. In or around August 2022, the Defendant, referred to as "Stability," launched an artificial intelligence model called Stable Diffusion, trained on visual assets from various internet sources including approximately 12.3 million images from Getty Images. Getty brought claims against Stability for infringement of copyright, database rights, trade marks, and passing off. The present appeal concerns an order by the trial judge on the first day of trial, which declared that allegations relating to child sexual abuse material ("CSAM") made in the Claimants' skeleton argument were not pleaded in paragraph 57.9 of the Claimants' Particulars of Claim.
The particular trade mark infringement allegation centers on synthetic images produced by Stable Diffusion containing signs identical or similar to Getty's trade marks, potentially causing detriment to the trade marks' reputation under section 10(3) of the Trade Marks Act 1994. Paragraph 57.9 of the Particulars of Claim originally alleged that Stable Diffusion could be used to create images containing pornography, violent imagery, and propaganda, which would tarnish the trade marks' reputation. During case management, Getty amended paragraph 57.9 to include references to specific example images relied upon. However, in their skeleton argument, Getty introduced allegations that the training datasets included NSFW content and CSAM, which Stability objected to on pleading grounds, leading to the judge's ruling under appeal.
Legal Issues Presented
- Whether the allegations concerning child sexual abuse material (CSAM) were properly pleaded in paragraph 57.9 of the Claimants' Particulars of Claim.
- Whether the trial judge erred in her interpretation of paragraph 57.9 of the Particulars of Claim, specifically regarding the scope of the term "pornography" and whether it encompassed CSAM.
- Whether the trial judge erred in applying the principles governing the pleading of serious allegations, such as those involving criminal conduct.
Arguments of the Parties
Appellant's Arguments (Claimants "Getty")
- The term "pornography" in paragraph 57.9 is broad and includes both legal and illegal pornography, with CSAM being a subset of illegal pornography.
- The judge wrongly applied rules on pleading serious allegations because Getty was not alleging Stability's direct criminal misconduct but rather that Stability created a system capable of misuse by users.
- The amendment to paragraph 57.9 to include specific examples was intended only to particularise examples without limiting the broad scope of the original allegation.
Respondent's Arguments (Defendant "Stability")
- The allegations concerning CSAM were not pleaded in paragraph 57.9 and thus could not form part of Getty's case at trial.
- Serious allegations such as those involving illegal conduct must be clearly pleaded to allow the opposing party to understand and prepare for them.
- The specific examples pleaded by Getty related to NSFW images of celebrities, not CSAM, and the defendant was entitled to know precisely what images were relied upon.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Case C-487/07 L'Oréal SA v Bellure NV [2009] ECR I-5185 |
Explanation of detriment to the repute of a trade mark (tarnishment or degradation) under trade mark law. |
The court cited this case to define how detriment to a trade mark's reputation arises when goods or services offered by a third party negatively impact the image of the mark, relevant to the trade mark infringement claim. |
Court's Reasoning and Analysis
The court undertook a detailed analysis of paragraph 57.9 of the Particulars of Claim and the nature of the allegations concerning "pornography." It recognized that "pornography" is a broad term, encompassing both legal and illegal forms, including CSAM. The Oxford English Dictionary definition and illustrative examples supported this broad interpretation.
However, the court emphasized the procedural context: at the case management conference, Getty agreed to particularize specific example images relied upon, which were artificial images depicting celebrities in states of undress, falling within the broad category of pornography but not including CSAM. The court found that the amendment to paragraph 57.9 was intended to narrow the scope of the claim by providing examples of the images relied upon, thereby excluding CSAM from the pleaded case.
The court also noted that Stability had objected that the allegations concerning CSAM were not pleaded and that the judge's ruling was based on the principle that serious allegations, especially those involving criminal conduct, must be clearly pleaded so the opposing party can prepare its defense.
On an objective reading, the court concluded that the pleaded case did not extend to CSAM, and the judge's ruling that the CSAM allegations could not be deployed at trial was correct, albeit for reasons somewhat different from those given by the judge.
Holding and Implications
The court DISMISSED the appeal.
The direct effect of this decision is that the allegations concerning child sexual abuse material (CSAM) contained in the Claimants' skeleton argument are not part of the pleaded case and may not be relied upon at trial. The court confirmed the importance of clear and particularized pleading of serious allegations, especially those involving illegal conduct, to ensure procedural fairness. No broader precedent was established beyond the application of established pleading principles in the context of this case.