The TuneIn case or communication to the public in the UK after Brexit: the status quo with targeting as a governance tool

2.1 Targeting: various approaches

As a preliminary point, one should point out that targeting is not an easy issue. The ideal place for a targeting rule is the jurisdiction stage. That is easily illustrated on the basis of the Hejduk case.^[6] In that case photographs of buildings by a certain architect had been licensed for an exhibition in the offices of a company. The litigation arose when the photographs were placed in the archive section of the website of that company after the exhibition had ended. The photographer relied on her copyright in the photographs to argue that such use went beyond the licence and therefore constituted copyright infringement. The company was based in Germany, but the photographer wanted to sue in her home courts in Austria. The Court of Justice of the European Union ruled that the Austrian courts had jurisdiction to hear the case on the basis of the second limb of Article 7(2) of the Brussels I Regulation, as damage would arise in Austria as a result of the fact that the website was accessible and could be opened in Austria. The Court of Justice relied on this purely factual analysis and restricted the jurisdiction of the Austrian court to the damage that would arise in Austria.^[7] The jurisdiction for local damage only principle is well established by the Court. In this case the application of the principle does little harm, as Germany and Austria are neighboring countries that share a language and as there was clearly no intention to sue anywhere else. But leaving the facts of this case aside, the principle potentially gives jurisdiction to any court anywhere in the world, since the website is accessible globally. A claimant with deep pockets could then harass the defendant by suing in (several) far away jurisdictions or by simply bringing a multitude of cases in different jurisdictions. At the very least, this would put such a claimant in a strong position to propose an unfavorable settlement to the defendant. Moreover, legal certainty and predictability, which are highly praised as jurisdictional values, can hardly be treated fairly.

What is also relevant for our current purposes is that the court of justice of the European Union, whilst using the local damage only principle as a regulatory tool, explicitly turned down the suggestion of the local court that referred the question to it to use the targeting principle in these kinds of cases. One has to agree with the court that article 7(2) Brussels I Regulation does not give it a hook for the application of a targeting approach, but this is nevertheless to be regretted. Despite the limitation to local damage, it means that cases with a very limited link with the country concerned will pass the jurisdiction stage and that the defendant will have to defend the case, even if its liability may turn out to be very limited or non-existent. In the logic of the Court of Justice of the European Union, it is unlikely that the claimant will bring such cases (Torremans and Fawcett 2017). That is correct when the defendant is bona fide and seeks damages for real infringement, but cases where that is not the case and where the claimant wants to harass the defendant or wants to force the defendant into an unfavorable settlement are unfortunately also a reality.

Faced with the restrictions of the Brussels I Regulation in terms of jurisdiction national judges have displayed a tendency to build a targeting element into the way they deal with substantive law. The defendant will have to defend the case, but the court will have a mechanism to throw out the case, which limits the risk of abusive proceedings being brought. In trade mark law, one sees the use of the requirement that there can only be infringement if the sign similar to the trade mark is used in the course of trade. Courts then define use in the course of trade as active commercial activity (Cheng and Wang 2019), typically in the form of online sales, in the jurisdiction and throw out case based on the mere accessibility of passive websites in the jurisdiction.^[8] And in copyright cases one could also place the TuneIn case in this category. After all, here reliance was placed on advertising that was directed at the UK customer to argue that communication to the public took place in the UK and that the UK market had been targeted.

An intermediate solution that falls in between these two extremes and that has the advantage that it operates at the jurisdiction stage and therefore stops the case from proceeding to the substantial law stage is to build in a quality threshold. One then uses the normal rules on jurisdiction, such as article 7(2) Brussels I Regulation (Torremans and Fawcett 2017), but the court will only accept it has jurisdiction if the defendant can show that it has an arguable case on the merits. The claimant will therefore have to show that it is arguable that copyright infringement has taken place in the jurisdiction and that there is at least a minimum amount of damage that needs to be compensated.^[9] That will cut out a lot of the abusive cases. And by classifying the requirement that the claimant proves an arguable case as a rule of civil procedure one avoids a conflict with the rules on jurisdiction, especially if the latter have been harmonised as is the case in the European Union (Torremans and Fawcett 2017). This approach has never been tested in the Court of Justice of the European Union, but it is ‘arguable’ …

All this brings me to the conclusion that, especially for copyright infringement cases on the internet, it would be much better to insert a targeting provision into the jurisdiction rules themselves in order to cut out cases that are really de minimis in an effective way that is predictable and gives the parties legal certainty at a minimal cost in terms of money and court time. This is effectively what we proposed with the CLIP group. In our Principles, the proposed rule took the following format:

Article 2:202: Infringement

In disputes concerned with infringement of an intellectual property right, a person may be sued in the courts of the State where the alleged infringement occurs or may occur, unless the alleged infringer has not acted in that State to initiate or further the infringement and her/his activity cannot reasonably be seen as having been directed to that State.

(Basedow et al. 2013: 69–84)

As can be seen here, targeting can, of course, take the form of direct allegedly infringing acts or activity in the relevant jurisdiction or the continuation of such activity. But in an internet age one can cover multiple jurisdictions from a single server located elsewhere. Targeting does then mean that activity is directed at the state where the court is alleged to have jurisdiction. In practice directing activity to a certain state can be demonstrated by means of use of the local language, specific advertising for the local public, local customer service telephone numbers, etc. In the absence of any of this, the jurisdiction has not been targeted and the local courts will not have jurisdiction to deal with the case. Courts in certain countries may be able to interpret the existing jurisdiction rules in this way, but in certain countries it may be necessary for the legislator to amend the jurisdiction rules in this way.

Even when a targeting rule is included, it still makes sense to limit the jurisdiction of the court to local damage if damage is the connecting factor that is relied on to give the court jurisdiction. The court is after all solely best placed to deal with the case because it knows the local facts, i.e. the damage that arises locally, best. That rule is also based on the fact that the claimant always has the option to bring the global case against the defendant in the court of the domicile or habitual residence of the defendant. That pattern changes though in certain internet cases. When the alleged infringement takes place on the internet, it is simply not an option for the claimant to bring a case for the local damage in each and every jurisdiction around the globe where the public has access to the internet. For this reason, the CLIP group suggested that a court can in such a case deal with the global case and the damage at a global scale. The standard option is then the court of the habitual residence of the defendant, but that court is less well placed if there is no substantial effect in that jurisdiction. Deliberate infringers may also hide in exotic locations or in copyright havens where it is very difficult to bring an effective case. In those circumstances, one can give jurisdiction for the global case to a court that has a good connection with the facts and is therefore well placed to deal with the case. That good connection exists when substantial activities are carried out in the jurisdiction or when substantial damage occurs in the jurisdiction. In the Principles, this took the following format:

Article 2:203: Extent of jurisdiction over infringement claims

(1) Subject to paragraph 2, a court whose jurisdiction is based on Article 2:202 shall have jurisdiction in respect of infringements that occur or may occur within the territory of the State in which that court is situated.

(2) In disputes concerned with infringement carried out through ubiquitous media such as the Internet, the court whose jurisdiction is based on Article 2:202 shall also have jurisdiction in respect of infringements that occur or may occur within the territory of any other State, provided that the activities giving rise to the infringement have no substantial effect in the State, or any of the States, where the infringer is habitually resident and

(a) substantial activities in furtherance of the infringement in its entirety have been carried out within the territory of the State in which the court is situated, or

(b) the harm caused by the infringement in the State where the court is situated is substantial in relation to the infringement in its entirety. (Basedow et al. 2013: 85–95)

With these points clarified, it is now time to return to the issue of how the English courts dealt with targeting in the TuneIn case.

2.2 Targeting in the TuneIn case

TuneIn couldn’t deny that its platform was targeting the UK. Everything was in English and there was a major effort to recruit users and customers who wanted to use the platform to distribute their advertising messages. On the other hand, TuneIn denied targeting the United Kingdom in connection with the communication to the public of the broadcasts of a foreign web radio station. The argument was relatively simple, how could we target if we do not touch the programs and taking into account that they are programs designed for a foreign national audience? The trial judge, as well as the Court of Appeal, rejected this argument as simplistic. In the logic of the objective test, the courts accepted the fact that TuneIn presented icons of potentially interesting radio stations on the screens of its users in the United Kingdom and that TuneIn made available links to the broadcasts of these radio stations. And then, no doubt of paramount importance, there were these advertisements, tailor-made for an audience in the United Kingdom who were interested in a certain genre of music. In short, the public in the United Kingdom was offered products and services that they could buy or procure in the United Kingdom and in which they were supposed to be interested. And so, TuneIn’s activities based on a radio station that did not target the UK as such, came out of the analysis as targeting the UK.^[10] Having resolved the preliminary question, the court could continue its analysis and turn to the question of whether there was indeed an act of communication to the public without the prior authorization of the rights holders.