As part of our declared aim to keep readers aware of the latestcases, we publish brief summaries of the IT cases covered by Lawtel in Octoberand November, plus one hot case from December. One full report is also included.All the full reports, which include hypertext links to other relevantcases/legislation referred to in the judgment, are of course available online.The full text of the judgments is also available to order through Lawtel’sTranscripts Express. We are grateful to Lawtel for supplying the text.
FRENCH CONNECTION LTD v SUTTON (1999)
In the claimant’s action for trade mark infringement of the mark ‘FCUK’and passing off by the defendant’s registration of the domain name ‘Fcuk.com’,summary judgment (as regards passing off) was not granted since the claimantsfailed to satisfy the judge, on the evidence before him, that the defendant hadno real prospect of successfully defending that claim.
INTELLECTUAL PROPERTY – INFORMATION TECHNOLOGY
Court : Ch.D (Rattee J) 2/12/99
References : LTL 2/12/99 EXTEMPORE (Unreported elsewhere)
Document No.: Case Law – C9200187
LAKEVIEW COMPUTERS PLC v (1) CHARLES STEADMAN (2) STUDIO DRIVE LTD (3)SPHERIC ENGINEERING LTD (1999)
Where a sole trader, who had title to the copyright in software materialcreated and developed by him, incorporated his business and thereafter allowedthe company to exploit the software as if it were its own, an agreement toassign the copyright to the company was to be implied.
INTELLECTUAL PROPERTY – COMMERCIAL – INFORMATION TECHNOLOGY
Court : CA (Evans LJ, Mummery LJ) 26/11/99
References : LTL 26/11/99 (Unreported elsewhere)
Judgment : Approved subject to editorial corrections – 12 pages
Document No.: Case Law – C7200563
RUBICON COMPUTER SYSTEMS LTD v UNITED PAINTS LTD (1999)
In an action claiming the unpaid balance in a sale of goods contract, thejudge was right to hold that the claimant had itself breached the contract byinstalling and operating a time-lock device in a computer system supplied by itto the defendant, and that the defendant, having accepted the claimant’srepudiation of the contract, was entitled to repayment of all sums paid underthe contract.
CONTRACT – INFORMATION TECHNOLOGY
Court : CA (Kennedy LJ, Aldous LJ, Mantell LJ) 12/11/99
References : LTL 12/11/99 EXTEMPORE (Unreported elsewhere)
Judgment : Official
Document No.: Case Law – C9500484
R v JONATHAN BOWDEN (1999)
The downloading and/or printing out of computer data of indecent images ofchildren from the Internet was capable of amounting to an offence within themeaning of s.1(1)(a) Protection of Children Act 1978.
CRIME – INFORMATION TECHNOLOGY – SENTENCING – CHILDREN
Court : CA (Otton LJ, Smith J, Collins J) 10/11/99
References : LTL 10/11/99 : TLR 19/11/99 : ILR 26/11/99
Judgment : Approved subject to editorial corrections – 9 pages
Document No.: Case Law – C7800578
MERCURY PERSONAL COMMUNICATIONS LTD (Respondent) v SECRETARY OF STATE FOR THEDEPARTMENT OF TRADE & INDUSTRY (Appellant) (1999)
The Secretary of State for Trade and Industry had power under s.3 WirelessTelegraphy Act 1998 to require existing mobile telephone operators to accept anamendment to their licences under the Telecommunications Act 1984 which wouldallow other operators to roam on their networks as a precondition of being ableto bid for a third generation mobile telephone licence. * Application for leaveto appeal to the House of Lords pending.
LICENSING – COMMUNICATIONS – INFORMATION TECHNOLOGY
Court : CA (Simon Brown LJ, Otton LJ, Mummery LJ) 14/10/99
References : LTL 14/10/99 : TLR 20/10/99
Judgment : Approved subject to editorial corrections – 17 pages
Document No.: Case Law – C9500453
STEPHEN HENRY HOUGHTON v LIVERPOOL CITY COUNCIL (1999)
The justices had been entitled to convict the appellant for three offencescontrary to s.92(1)(c) and s.92(6) Trade Marks Act 1994 since, inter alia, acomputer printout of a Trade Marks Registry registration certificate wasadmissible in evidence as a self-proving statement under Sch.3 Police andCriminal Evidence Act 1984, not as a written statement.
CRIMINAL PROCEDURE – INTELLECTUAL PROPERTY – EVIDENCE – INFORMATIONTECHNOLOGY
Court : DC (Laws LJ, Potts J) 8/10/99
References : LTL 11/10/99 EXTEMPORE : ILR 22/11/99
Document No.: Case Law – C9300204
OWNERS OF THE SHIP ‘PELOPIDAS’ v OWNERS OF THE SHIP ‘TRSL CONCORD’(1999)
Comments on expert evidence and computer plotting in Admiralty casesfollowing the introduction of the Civil Procedure Rules 1998.
ADMIRALTY – SHIPPING – EVIDENCE – CIVIL PROCEDURE – CPR – INFORMATIONTECHNOLOGY
Court : QBD Admiralty Court (David Steel J) 8/10/99
References : LTL 8/10/99 (Unreported elsewhere)
Judgment : Approved – 24 pages
Document No.: Case Law – C8600587
Full report: R v Jonathan Bowden (1999)
CA (Otton LJ, Smith J, Collins J) 10/11/99
[Keywords omitted]
The downloading and/or printing out of computer data ofindecent images of children from the Internet was capable of amounting to anoffence within the meaning of s.1(1)(a) Protection of Children Act 1978.
An appeal against conviction and sentence imposed at Cambridge Crown Courtbefore HH Judge Haworth. The appellant had been charged with 12 counts of having‘made an indecent photograph’ contrary to s.1(1)(a) Protection of ChildrenAct 1978, and nine other offences of possessing an indecent photograph of achild under the age of 16 years, contrary to s.160
Criminal Justice Act 1988. The appellant was sentenced to four monthsimprisonment for the 1978 Act offences and three months concurrent for the 1988Act offences. The appellant had downloaded photographs containing indecentimages of young boys from the Internet and either printed them out or storedthem on computer discs, for his own personal use. One of the photos existed onlyas data. The appellant had pleaded not guilty to the 12 counts on the 1978 Actoffences but changed his plea after a ruling from the judge that theappellant’s behaviour had amounted to the taking or making of an indecentphotograph and he was not merely in possession of them. The issue on appeal waswhether downloading and/or printing out of computer data of indecent images ofchildren from the Internet was capable of amounting to an offence within themeaning of s.1(1)(a) of the 1978 Act.
HELD: (1) Section 1 of the 1978 Act had been amended by s.84 Part VII CriminalJustice and Public Order Act 1994 to read ‘It is an offence for a person:(a) to take, or permit to be taken, or to make any indecent photograph orpseudo-photograph of a child…’ It was held in R v Fellows & Anor(1997) 1 CAR 244 that the scope of the definitions of indecent photographsin ss.1 and 7 of the 1978 Act was wide enough to include a form of technologynot anticipated when the Act was passed, and that a disc containing data of aphotograph represented the original photograph in another form and was capableof coming within the definition of ‘photograph’. It was accepted in theinstant case that s.1(1)(a) of the 1978 Act covered those involved in thecreation of pseudo-photographs who may have had no contact with the subjects ofthe images. (2) The wording in s.1 of the 1978 Act as amended was clear andunambiguous. It rendered unlawful the making of a photograph or apseudo-photograph. The words ‘to make’ had to be given their natural andordinary meaning, and in the instant context that was ‘to cause to exist; toproduce by action, to bring about’. By virtue of s.7 of the 1978 Act thatmeaning applied to negatives, copies of photographs and data stored on computerdisc. A person who either downloaded images on to disc or who printed them outwas ‘making’ them. To download or print the images within the jurisdictionwas to create new material. The reproduction of indecent material to be found onthe Internet was within the mischief aimed at by the legislation when the 1978Act was amended by adding the words ‘to make’. The Act was not onlyconcerned with the original creation of images, but also their proliferation.Photographs or pseudo-photographs found on the Internet might have originatedoutside the UK; to download or print within the jurisdiction was to create newmaterial which hitherto might not have existed there. (3) The amendment to the1978 Act occurred in 1994, and the presumption that applied was that Parliamenthad intended to legislate in conformity with the Convention, and not in conflictwith it. The right to respect for private and family life under Art.8 EuropeanConvention on Human Rights could be legitimately interfered with where necessary‘for the protection of health or morals or for the protection of the rightsand freedoms of others’. (4) The appellant was of good character and there wasno breach of trust nor any evidence of risk to the public. There was also nofurther dissemination of the material. Therefore, in the circumstances acustodial sentence was not the only appropriate course and the sentences hadbeen manifestly excessive and wrong in principle. A conditional discharge of 12months for all counts was substituted.
Appeal against conviction dismissed. Appeal against sentence allowed.
Sadakat Kadri instructed by Sheratte Caleb for the appellant. Michael Crimpinstructed by CPS (Cambridge) for the Crown.
LTL 10/11/99 : TLR 19/11/99 : ILR 26/11/99
Judgment Approved subject to editorial corrections – 9 pages
Document No: C7800578
