In the recent case of Mr Edward Rocknroll v News group Newspapers Ltd, the Claimant, Kate Winslet's new husband, was granted an interim injunction preventing semi-naked photographs of him from being published in the well known British tabloid newspaper, the Sun.
The judgment focused primarily on the human rights law question of whether the claimant's Article 8 of the European Convention of Human Rights ("ECHR") right to a private life, should prevail over the defendant's Article 10 ECHR right to freedom of expression; the court found that it did. However, the judge also made some interesting comments on the balance between a claimant's rights under copyright and a defendant's Article 10 ECHR right to freedom of expression.
The photographs had been taken at a private party with the claimant's consent. Copyright was initially held by the photographer, who had published them on his Facebook page, where it would appear that the Sun had uncovered them. On hearing of the Sun's plans to publish the photographs, the photographer assigned copyright to the claimant (and deleted the photos from Facebook)!
The judge noted, with respect to the copyright question, that copyright is a private intellectual property right and, unlike the Article 8 right to privacy, it is not expressly qualified. An injunction to restrain a threat of copyright infringement should therefore usually stand a good chance of succeeding, notwithstanding the argument that an injunction may impinge upon a defendant's right to freedom of expression.
An injunction is of course a discretionary remedy and, on particular facts, the court may be inclined to leave the claimant to a claim in damages rather than grant an injunction, i.e. perhaps where the claim was pursued for purely commercial reasons. However, this was unlikely to happen often. The present case illustrated why this would be unlikely. A claim in copyright would merely prohibit the actual copying of the photographs, rather than the publication of a description in words of their content. As such, an injunction merely to restrain copying of the photographs would not prevent the defendant from expressing itself, albeit in a slightly restricted way.
The key lesson from this case, with respect to copyright, is the reminder that in the UK, copyright trumps the freedom of expression ECHR right. Whilst this rule doesn't have a particularly wide application, it does show that copyright can potentially be an important means of protecting privacy in the UK. Given that the UK does not offer specific protection for the right of publicity, it may at least be another weapon in the armoury of anyone who is prepared to take legal action to protect their privacy.
You can access the full judgment here.