Nottinghamshire NHS Trust v News Group Newspapers

This case concerned the use in The Sun of a photograph of a patient at Rampton Hospital. The photograph was taken while the patient was at the hospital and formed part of his medical notes. Nottinghamshire NHS Trust owned the copyright in the photograph and, unhappy at its publication, brought an action for copyright infringement.

The High Court had little difficulty in finding that copyright had been infringed. Among other instances, it had been infringed when the image was stored in the paper’s picture database and on publication in the newspaper itself.

In addition to its claim for an injunction and ordinary damages, the trust sought an order for additional damages. It argued that, in view of the flagrancy of the infringement and the surrounding circumstances, the additional damages should include a substantial punitive or exemplary element.

Additional damages are a particular kind of damages which are provided for in the Copyright, Designs & Patents Act 1988. They do more than compensate a claimant for the harm which flows naturally and directly from the infringement, such as the fee which would have been payable to the copyright owner if permission had been sought. They may be awarded where infringement has been flagrant or in view any benefit accruing to the defendant by reason of the infringement. Flagrancy is generally accepted to mean that there has been scandalous conduct or deceit and would include deliberate and calculated infringement.

The judge in this case added that carelessness could also be capable of aggravating infringement and of leading to an award of additional damages. Such damages are not limited to cases of deliberate infringement alone.

The judge concluded on the evidence available that the photograph had been used knowing that the hospital would object to its use or not caring whether it would object. In either case, the infringement was flagrant.

Taking into account the fact that the photograph was obviously stolen, that there had never been an apology for its use and, most importantly, that its inclusion had caused a degree of upset, the judge awarded an uplift on the ordinary damages of £450 to bring them to £10,000.

The case is interesting for the detailed examination by the judge of whether an award of additional damages contains an exemplary element, in the sense that it is intended to punish defendants for their wrongdoing, or whether it is more accurate to categorise it as including a form of aggravated damages, ie, taking into account the injury to the claimant’s pride and his humiliation and distress referable to the defendant’s actions.

The judge favoured the view that there was a wide discretion on the part of the court. Additional damages could include a punitive element but this was not the sole purpose of such an award.

Defendants misusing copyright works in a flagrant manner will need to bear in mind the risk. The question is: was £10,000 sufficient here? Did the benefit to The Sun in using the photograph exceed this? A difficult assessment to make. If such use continues in the future, it will be clear that the answer is no.

Michele Boote is a partner in Theodore Goddard’s intellectual property group

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