1709 Blog: for all the copyright community

Monday, 18 July 2011

When negotiations don't end in a done deal

Looking for the news? Try a taxi driver
Ebden v News International Ltd is an unreported decision of the Chancery Division, England and Wales, which has not been uploaded on to BAILII but which comes to me via a LexisNexis update. It's a decision of Mr Justice Norris and it deals with it covers not only copyright per se but also confidentiality and publishing contracts in an action brought by Ebden against the very-much-in-the-News International.

Ebden made a video recording of a fight at a night club, witnessed by three taxi drivers, in which a premiership football player was involved. He approached News International, which offered him £2,000 for the story if the video could be used.  Ebden said he wanted £20,000 and transferred the video to News International. The video turned out to be of poor quality and didn't show the fight clearly. However, News International agreed to pay the £20,000 if the quality of the video could be improved -- payment being dependent on its publication. At this point Ebden now sought £150,000 -- which News International refused to pay -- but the company did advise Ebden not to talk to other newspapers. Following two further meetings between a News International reporter and Ebden, a contract was drafted which did not specify a price but reiterated that payment depended on publication of the video. No agreement was reached regarding payment of £150,000.

In the event, News International did publish the story, based on information provided by the taxi drivers, and told Ebden that it had used neither his information nor his video. Coincidentally, another newspaper published a story about the same footballer, this time being involved in a different fight: this feature resulted in the newspaper facing a libel claim. News International passed the video and Ebden's contact details to the other newspaper, which contacted him with a view to his assisting it as a witness; News International offered him £5,000 to assist.  At this point Ebden, probably feeling somewhat miffed at ending up as a witness instead of having a large amount of money in his pocket, rejected News International's offer and asked for payment of the £150,000 which, he maintained, News International owed him. No, said News International, so off they went to court -- Ebden as a litigant in person.

Mr Justice Norris dismissed Ebden's claim for the cash. In the first place, there was no contract in which News International agreed to pay Ebden £150,000 for publication of his story. The parties had been negotiating over use of the video but did not contemplate any legal relationship arising out of the right to run the story as such.  Payment was to be made for use of the video only (i) if its quality could be improved and (ii) it was actually used.  However, the video itself was never published.

Ebden did not own the story. While the video was unique to Ebden, the story itself was shared by a number of other people.

News International had not infringed copyright.  While it had made copies of the video, it had done so for the purpose of judicial proceedings under the Copyright Designs and Patents Act 1988, s.45.

Nor had there been any breach of confidence. While it was agreed that Ebden was not to be identified as the source in any publication and his contact details were not to be revealed, a reporter who circulated that information within his employer's sphere of activity was not in breach of that term. Likewise, supplying Ebden's contact details to the other newspaper's solicitors did not amount to a breach of confidence since they too would be bound to keep that information confidential.

From the summary of facts, this sounds like an action which the litigant in person had little prospect of winning and which he might have been well advised not to commence.

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