Law Report: Documentary on funeral homes could be shown

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The Independent Online
Service Corporation International plc and another v Channel Four Television Corporation and another; Chancery Division (Mr Justice Lightman) 12 May 1998

WHERE a claim in copyright of film was used as a vehicle for a claim which truly lay in defamation, a television company would not be prevented by injunction from showing that film as part of a documentary programme, where they had a good prospect of establishing the defence of public interest.

The plaintiffs' application for an injunction to restrain the defendants from showing certain video film as part of a television documentary on funeral homes on the evening of 12 May was refused.

The second plaintiff, a subsidiary of the first plaintiff, owned and operated 584 funeral homes throughout the UK. In 1997 Ben Anderson, working undercover for the second defendant, which was making a documentary on funeral homes, was employed by the second plaintiff as a trainee funeral director at a funeral home in Salisbury. He covertly filmed certain events at the home, showing corpses being subjected to disrespectful and abusive treatment, and coffins with corpses in them being used as rubbish bins.

Charles Gray QC and Mark Warby (Dibb Lupton, Birmingham) for the plaintiffs; James Price QC and Jacob Dean (D.J. Freeman) for the defendants.

Mr Justice Lightman said that the starting-point in any application such as the present was the fundamental right and public interest in freedom of speech, the press and broadcasters protected by article 10 of the Convention of Human Rights and Fundamental Freedoms.

Although the plaintiffs said that their application was motivated by the prospect of distress and concern amongst the 50 families who had used the Salisbury funeral home during the year that the events depicted had taken place, concern for the plaintiffs' reputation and goodwill plainly underlay the application.

If a claim based on some other cause of action was in reality a claim brought to protect the plaintiff's reputation, and the reliance on the other cause of action was merely a device to circumvent the rule against granting an injunction in a claim in defamation, the overriding need to protect freedom of speech required that the same rule be applied. It was very difficult to see the claims made in the present case as other than attempts to circumvent the rule and to seek protection for the plaintiffs' reputation.

The plaintiffs claimed equitable ownership of the copyright in the film, alleging that Mr Anderson was the "maker" of the film, and had made it during his working hours and in breach of his duties of fidelity owed to the plaintiffs. An employer was, in the absence of an agreement to the contrary, the owner of copyright in a work created by his employee in the course of his employment, and might be entitled in equity to the copyright in a work created by an employee otherwise than in the course of his employment if the employee had created the work in breach of his fiduciary duty to his employer. No breach of fiduciary duty could, however, be seen in the present case.

To succeed in the action the plaintiffs had to establish that they were entitled to copyright in the film and successfully to resist the defence that the showing of the film was in the public interest. The evidence before the court suggested that the defendants had a good prospect of establishing that defence.

Even if it were thought that the outcome of the litigation was uncertain, the court would exercise its discretion to refuse the injunction for the following reasons: the press and broadcasters should not be silenced on a matter so deeply affecting the public by a claim with limited or uncertain prospects of success; the balance of convenience favoured the refusal of an injunction, since the impact and value of the film depended on timing, news value and topicality; and the extraordinary and unacceptable delay by the plaintiffs in applying for the injunction.