Background
Roadget Business Pte Ltd and SHEIN Distribution UK Ltd, companies in the SHEIN group, alleged that Whaleco UK Limited, operator of Temu’s UK online marketplace, infringed copyright in SHEIN product photographs appearing in 2,559 merchant listings. The claim covered photographs taken by Guangzhou SHEIN employees, supplied by agencies, or provided by suppliers. Temu maintained that independent merchants controlled their listings and uploaded the photographs.
The liability trial proceeded using five samples after SHEIN abandoned all agency samples and all but one supplier sample. The remaining works comprised four employee works and supplier photographs of a “Strawberry Nightdress.” Temu denied infringement, invoked the hosting defence under Regulation 19 of the Electronic Commerce (EC Directive) Regulations 2002, and counterclaimed under SHEIN’s cross-undertakings in damages for listings removed pursuant to interim injunctions issued in September 2023 and February 2024.
The Court’s Holding
Mrs Justice Bacon dismissed SHEIN’s infringement claim. Although SHEIN eventually obtained title sufficient to sue over the Strawberry Nightdress photographs, the supplier had consented to their use on the relevant Temu store. As to the sampled works generally, Temu neither authorised infringing reproductions under section 17 of the Copyright, Designs and Patents Act 1988 nor communicated the photographs to the public under section 20. Temporary copies made when users viewed the website were covered by section 28A.
The secondary-infringement claim under section 23 also failed because Temu neither knew nor had reason to believe that the photographs were infringing copies before the listings were removed. The court further held that, had infringement been established, Temu would have qualified for the Regulation 19 hosting defence: it lacked the required knowledge of specific illegality and acted expeditiously upon notification.
Temu succeeded on liability under its counterclaim. The interim orders were a dominant and effective cause of losses from the removed listings because Temu’s platform could not maintain or sensibly sell the products without photographs. Temu acted reasonably in taking down the listings and did not fail to mitigate its loss. The amount recoverable will be determined at a later quantum trial.
Key Takeaways
- An online marketplace does not necessarily authorise reproduction or itself communicate protected works merely by hosting merchant-created listings.
- A notice must provide sufficiently precise and substantiated information about specific illegality to defeat the hosting defence; broad assertions of ownership and infringement may be inadequate.
- A claimant may incur liability under a cross-undertaking in damages when an interim injunction causes lawful or unsupported listings to be removed.
Why It Matters
The judgment clarifies how UK copyright rules apply to marketplace operators whose independent merchants upload product images. It distinguishes hosting and related platform functions from the deliberate intervention or knowledge required for primary and secondary infringement.
It also underscores the risks of seeking mass takedowns without first verifying copyright ownership and chain of title. Rights holders pursuing interim relief may ultimately have to compensate a platform for losses caused by wrongful notifications, even where the order formally required removal of images rather than entire listings.