Pornography, sexual privacy and copyright

Abstract

This article proposes a new paradigm in the consideration of privacy in pornographic works in copyright enforcement actions. It focuses particularly on attempts to threaten individuals with copyright infringement action based on a speculative invoicing model. We approach this issue from the perspective of the right to sexual privacy of alleged infringers, which, as we argue, is particularly pertinent for pornographic works. The courts in England and Wales have broadly recognised the role of individual privacy and embarrassment caused to alleged infringers in the leading cases of Golden Eye and subsequently in Mircom, but the law remains unclear with no real recognition of, or meaningful mechanisms in place to address, the underlying issues. The article points out that this is due to a fundamental lack of appreciation of sexual privacy at a conceptual level in the context of consumption of pornography in the internet age, and consequent failure to consider this in copyright enforcement proceedings. We argue that the law should achieve a balance between the right holder’s interest and the sexual privacy of alleged infringers, and copyright enforcement actions need to be approached with this in mind. This calls for a fundamental reconceptualisation of the right to privacy, and we call upon the courts to recognise and balance the sexual privacy rights of the alleged infringers of copyright in pornographic works with the interests of the right holders in certain copyright enforcement actions to achieve fair and equitable outcomes.