Sturgeon - nothing fishy about my garden; No spam from McDonald's, please

Sturgeon - nothing fishy about my garden

The IPKat reads with interest in this morning's Telegraph of a curious little dispute that has reached the Irish courts. Irish author and horticulturalist Diarmuid Gavin claims that Andy Sturgeon has infringed the rights in his design for a garden he created four years ago, featuring a turquoise swimming pool and whirlpool bath crowned by an oval pavilion. Gavin's garden - garnished with a nude model armed with a strategically-placed watering can - was highly praised at this year's RHS Chelsea Flower Show.

Sturgeon, who also writes and commentates widely on gardening issues, denies infringing and seeks to have the action struck out, maintaining that (i) he designed his garden himself during five days last May, (ii) the allegations are defamatory and (iii) the Irish courts have no jurisdiction.

The IPKat is fascinated to find out what happens next. First, is the allegedly infringed garden a two-dimensional plan or drawing or a three-dimensional work of artistic craftsmanship? Secondly, if Sturgeon's garden is held to infringe, what sort of relief other than damages might the courts grant: a mandatory injunction to dismantle it in whole or in part? Delivery up? The prospects are most amusing. Merpel says nothing: she's just wondering about the circumstances in which a derivative garden might be able to avail itself of the defence of privet research ...

Design your own garden here
Garden of Eden here and here
Garden of earthly delights here


No spam from McDonald's, please!

Not McDonald's the fast food enterprise but McDonald's business of selling spammable databases of unsuspecting Hotmail users... This decision is not yet on BAILII and picked up first by the Lawtel subscription service: it's Microsoft Corporation v McDonald, a Chancery Division decision of Mr Justice Lewison yesterday.

This was an application by Microsoft, in its capacity of lord and master of the MSN Hotmail service, for summary judgment on its claim that McDonald had transmitted, or instigated the transmission of, unsolicited communications by email to individual subscribers for the purpose of direct marketing within the meaning of the Privacy and Electronic Communications (EC Directive) Regulations 2003, Reg.22 [IPKat note: this seems to be a very long way of saying McDonald was being accused of sending spam].

Microsoft normally protected Hotmail subscribers against spam by setting up its own 'target accounts', which it used as decoys to catch spammers. Throught this system, Microsoft discovered a business trading as BIZADS that operated a website offering to sell database lists containing a large number of email addresses. Information on the website indicated that the email account holders on the lists had either opted to receive marketing communications or had not indicated that they did not want to receive the communications. However, a high proportion of people who received emails from purchasers of BIZADS database lists complained that they were receiving unsolicited mail.

Left: effective and persuasive relief against infringers ...

Bringing this action, Microsoft argued that (i) since McDonald owned and ran BIZADS and instigated the sending of spam, he was liable for breach of Reg.22; (ii) as a result of the spam Microsoft suffered loss by damage to its goodwill, in that subscribers were less willing to continue to subscribe if they were not effectively protected from spam, fighting spam was expensive and it had had to buy additional servers to cope with the volume of spam transmitted.

Lewison J granted Microsoft's application for summary judgment.

* The Regulations implemented Directive 2002/58, which sought to protect email subscribers as well as electronic communication networks.

* Microsoft had a cause of action, being one of the class of persons for whom the Regulations were passed.

* The definition of "instigation" in Reg.22 was the ordinary dictionary definition.

* Evidence plainly established that BIZADS supplied email lists of non-consenting persons and that it encouraged purchasers of its lists to email those people.

* McDonald had no reasonable prospect of defending the allegation that he was behind the BIZADS business.

* The Regulations did not specifically entitle victims to get injunctive relief. However the Supreme Court Act 1981 enabled a court to grant an injunction where it was just and convenient to do so. If no injunction were granted, a person who suffered repeated damage would have to bring a series of actions.

The IPKat is really pleased that they've given Lewison J a short case to hear, after all the long ones he's had to do. Merpel says, it's tough on email-users that they have to depend on private organisations to take the initiative in stamping out spam, when the consequences of spam are so damaging and time-wasting for the entire economy. So how about diverting some public funds to scouring for spammers, making sure that they are divested of their assets if they can't show they've paid for them by legitimate means?