Linking, Framing, and Metatagging
Nottinghamshire County Council v. Gwatkin, (High Court of Justice, Chancery Division, June 3, 1997)
The Gwatkin case highlights the sometimes insurmountable problems even a successful litigant can experience in attempting to enforce an order intended to preclude further infringement by publishing and then linking to copyrighted materials posted on the Internet.
In Gwatkin, the Nottinghamshire County Council filed suit against three British journalists and a web site operator claiming that their Internet posting of a long suppressed government report critical of Nottingham's Social Services Department's investigation into allegations of Satanism and child abuse in the late 1980s infringed on the Council's copyright to the report.
The report, known as the 1990 "Joint Enquiry Report," was highly critical of the Department's "dubious investigative techniques" of accepting without question or supporting physical evidence the allegations made by the alleged child victims, and the Department's "rigid preconceived ideas" as to how to conduct this type of investigation. According to the posting journalists, the Report was so damning that it was immediately suppressed by the Council in 1990, which also forbade members of the inquiry team from discussing its contents or conclusions.
The Report was immediately picked up by mirror web sites throughout the United Kingdom and around the world. Within hours of the posting, the Council obtained an ex parte injunction from the Chancery Division ordering the removal of the Report from the web site and removal of all hyperlinks from the posting web site to mirror web sites in Belgium and the United States. The basis for granting the injunction was the Council's owning of the copyright. It should be noted that since the injunction was granted on an ex parte basis, the Court did not consider any issues that the defendants might have raised in defense.
The issuance of the injunction and the threat of a full-blown copyright infringement action was enough to cause the original posting defendants to remove the Report and the mirror web site links from the United Kingdom web sites. Removing the Report or the links from the dozens of mirror web sites ultimately proved impossible, however. The Council attempted to enforce the order by sending the mirror web site operators letters threatening legal action for copyright infringement. Although a few mirror web sites took down the Report, many ignored the Council's request and, at least one responded by questioning the enforceability of the injunction outside of the United Kingdom and challenging the Council to take action against his web site. In August 1997 the Council, citing the expense of attempting to enforce the order worldwide, conceded defeat and withdrew its Complaint.