Invisibility cloak fails to protect Harry Potter thieves

It was a quiet Bank Holiday Monday in The Sun’s newsroom. Suddenly the phone rang. “Golly gosh,” gasped Rebekah, “whoever could that be?” “Hallo darlin’,” said an unfamiliar voice, “fancy a shufti at the new Potter?” “But surely it’s not out till next month,” replied Rebekah, half-suspecting this was Piers up to one of his wizard pranks.

The anonymous caller – not Piers – offered to sell The Sun three chapters of the as yet unpublished Harry Potter book for £25,000. The Daily Mail and the Daily Mirror later received similar, and equally anonymous, offers.

The Sun subsequently obtained two copies of the book from an individual who said he found them lying in the grass on Bungay Common in Suffolk. On the following day The Sun splashed with the mysterious story. In order to protect the confidentiality and copyright in the new book, shortly afterwards and following further developments, JK Rowling and her publisher Bloomsbury Publishing began legal proceedings. They applied for an immediate injunction against The Sun.

However, despite the fact that two copies of the book were now in the possession of The Sun, the claimants suspected that the thieves were still trying to find a buyer for at least one further copy of the book. While they had perfectly good legal remedies against them – in copyright, confidence and conversion – at that stage the wrongdoers’ identities were a mystery. Rowling and Bloomsbury therefore applied for an injunction against persons unknown.

While this procedure is commonplace in the US, where it is described as a John Doe order, it is much less usual in England and Wales, though it is certainly not unheard of, particularly where the identity of at least one defendant is known but that of others is not (eg EMI Limited v Kudhail).

Mr Justice Laddie saw no difficulty in agreeing to grant an injunction on this basis, deciding that “in a suitable case the court should do what it can to allow injunctive relief to be ordered against [a defendant] even if it is not possible to identify him by name.” Later, on 23 May, 2003, the case came before the vice-chancellor, by which time the identity of four of the wrongdoers was known, but at least one remained unidentified. The vice-chancellor had little hesitation in upholding the injunction and in deciding that following the introduction in 1999 of the new civil procedure rules, there was no reason why the court should not grant an injunction against a defendant whose identity was at that time unknown, provided that he is described with sufficient certainty to identify those who are included in the description and those who are not.

In this case the unknown defendants were described as follows:

“The person or persons who have offered the publishers of The Sun, the Daily Mail and the Daily Mirror newspapers a copy of the book Harry Potter and the Order of the Phoenix by JK Rowling or any part thereof and the person or persons who has or have physical possession of a copy of the said book or any part thereof without the consent of the claimants.”

This provided sufficient certainty for the court, and the injunction was granted. Newspapers therefore now need to be aware that if they are offered material which may be confidential, protected by copyright or otherwise unlawfully obtained, and the rightful owner of that material gets wind of what is happening, he or she may simply apply for what we will perhaps come to call a Harry Potter order – whether or not the claimant applies for an injunction against the newspaper itself.

It is now well established that where an interim injunction is granted, anybody else who is aware of its terms is bound by it. For this precise reason, claimants’ lawyers will therefore usually circulate such an injunction to the media generally. In those circumstances, the newspaper in question, and indeed any other newspaper which had notice of the injunction, would therefore run the risk of liability for contempt of court – and a chunky damages claim – if it went ahead and published.

David Engel is a partner in the media & internet litigation group at Addleshaw Goddard

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