{"id":9004111222145157,"date":"2026-09-09T09:37:17","date_gmt":"2026-09-09T08:37:17","guid":{"rendered":"https:\/\/www.hgf.com\/?p=9004111222145157"},"modified":"2026-09-09T09:37:17","modified_gmt":"2026-09-09T08:37:17","slug":"high-court-clarifies-the-limits-of-copyright-claims-against-online-marketplaces","status":"publish","type":"post","link":"https:\/\/www.hgf.com\/de\/knowledge-hub\/articles\/high-court-clarifies-the-limits-of-copyright-claims-against-online-marketplaces\/","title":{"rendered":"High Court Clarifies the Limits of Copyright Claims Against Online Marketplaces"},"content":{"rendered":"

Roadget Business PTE.\u00a0 Ltd & Shein Distribution UK Ltd v Whaleco UK Ltd \u2013 Bacon J<\/em> [2026] EWHC 2165 (Ch) \u2013 13 August 2026<\/strong><\/a><\/p>\n

In a significant judgment on online marketplace liability, Bacon J in the UK High Court dismissed Shein’s copyright infringement claims against Temu arising from the use of product photographs on the Temu platform.<\/p>\n

Shein failed on each of its pleaded infringement routes, which included s.17 (copying), s.20 (communication to the public) and s.23 (secondary infringement) CDPA[1]<\/a>.\u00a0 The Court also held that Temu would, in any event, have been entitled to rely on the hosting defence under Regulation 19 of the Electronic Commerce (EC Directive) Regulations 2002.<\/p>\n

Temu further succeeded on liability under its counterclaim relating to listings removed pursuant to interim injunctions obtained by Shein.\u00a0 Under those injunctions obtained in September 2023 and February 2024, Temu had removed numerous product listings following notifications from Shein.\u00a0 When many of the underlying copyright claims ultimately failed, Temu sought to recover its losses under Shein’s cross-undertakings in damages.<\/p>\n

Background<\/strong><\/span><\/p>\n

The copyright proceedings formed part of a wider dispute between Shein and Temu, both of which operate large online fashion e-commerce platforms. Shein alleged that photographs originally used on Shein product listings had subsequently appeared on listings offered by third-party sellers through the Temu marketplace.\u00a0 Rather than pursuing those sellers directly, Shein contended that Temu itself incurred liability through operation of its platform.<\/p>\n

The evidence showed that Shein’s procurement practices often left suppliers with significant quantities of unsold “dead stock”, as products could be delisted relatively quickly if sales targets were not met.\u00a0 Suppliers would then seek to sell that stock through Temu-linked sellers, rather than the general inventory disposal market in China.\u00a0 In doing so, they often used the same photographs that had previously appeared on Shein’s website.<\/p>\n

The scale of Shein’s complaints also featured prominently throughout the judgment.\u00a0 Shein’s first June 2023 letter before action identified more than 8,000 Temu URLs; however, Shein later accepted that it had not established ownership of all of the copyrights being asserted at that stage and had only provided comparison screenshots for a small proportion of the listings.<\/p>\n

The copyright issues were tried alongside Temu’s counterclaim because Shein had previously obtained take-down injunctions against Temu.\u00a0 Pursuant to those injunctions, Temu removed numerous product listings following notifications from Shein. Temu subsequently alleged that many of those removals were wrongful and sought to recover its losses under Shein’s cross-undertakings in damages.\u00a0 The liability issues were therefore relevant both to Shein’s infringement claims and to Temu’s claim that the injunctions had caused loss.<\/p>\n

The liability trial therefore centred on two questions: whether Shein had title to sue in respect of the photographs and whether Temu incurred liability through the presence of those photographs on its marketplace.<\/p>\n

Copyright Ownership<\/strong><\/span><\/p>\n

The trial ultimately proceeded by reference to five sample works selected from a claim that had originally concerned more than 2,500 product listings: four employee-created photographs and the supplier-created “Strawberry Nightdress” photographs, which depicted a nightdress supplied to Shein and subsequently sold through a third-party Temu store.<\/p>\n

Notably, ownership was addressed differently for the four employee-created photographs and the Strawberry Nightdress supplier work. By the time of the trial, the four employee-created works had ceased to be a live issue. Temu had accepted that copyright in those works vested in Guangzhou Shein as employer and had subsequently been assigned to Roadget (Shein\u2019s parent company).<\/p>\n

The position was considerably more complex in relation to the Strawberry Nightdress photographs. A large portion of the judgment concerned the effectiveness of a series of agreements governed by People’s Republic of China (PRC) law and whether they operated to transfer copyright and accrued rights of action to Shein.<\/p>\n

The Court was also critical of aspects of the evidence given by certain Shein witnesses concerning ownership of the photographs and Shein’s understanding of its copyright position. In particular, Bacon J found that Mr Lin, the supplier of the Strawberry Nightdress, was not a reliable witness on certain issues after he initially claimed not to know the Temu-linked seller of the relevant products, who was later revealed to be his cousin.<\/p>\n

The Court concluded that, prior to the execution of later agreements in 2024, Shein held only a non-exclusive licence to use the photographs rather than copyright ownership.<\/p>\n

Although Shein’s primary case failed, Bacon J held that copyright and accrued rights of action ultimately passed to Roadget through the combined operation of two agreements entered in June 2024. As a result, Shein had sufficient title to sue in respect of the Strawberry Nightdress photographs.<\/p>\n

<\/a>Authorising Reproduction of Images (s.17<\/strong> CDPA)<\/strong><\/span><\/p>\n

Bacon J rejected the s.17 CDPA claim on the basis that copies generated through ordinary browsing activity fell within the temporary copying exception under section 28A CDPA. Additionally, Temu’s operation of the marketplace did not amount to authorisation of infringement. It was sufficient that Temu prohibited merchants from uploading infringing content and operated a process by which rights holders could submit complaints.<\/p>\n

Communication to the Public (s.20 CDPA)<\/strong><\/span><\/p>\n

Bacon J also rejected the s.20 CDPA claim. Applying the CJEU authorities, including GS Media (<\/em>EU:C:2016:644<\/em><\/a>)<\/em>, Stichting Brein\u00a0v Ziggo\u00a0<\/em>(<\/em>EU:C:2017:456<\/em><\/a>) <\/em>and Peterson v Google (EU:2021:503<\/a>)<\/em>, Bacon J held that Temu had not played a sufficient role in making the photographs available to the public. Temu merely operated a platform through which merchants uploaded content and there was no evidence that it encouraged, promoted or knowingly facilitated copyright infringement.<\/p>\n

The Court confirmed that the operation of an online marketplace was not, without more, sufficient to establish liability for communication to the public.<\/p>\n

<\/a>Exhibiting and Distributing Images (s.23<\/strong> CDPA)<\/strong><\/span><\/p>\n

The Court also rejected Shein’s claim under section 23 CDPA.\u00a0 The Court drew a distinction between knowledge that a platform may contain infringing material somewhere within its marketplace and knowledge that the particular photographs relied upon in the proceedings were infringing copies.<\/p>\n

Whilst Temu was aware of Shein’s broader allegations regarding infringement on the platform, the Court was not satisfied that Temu knew, or had reason to believe, that the specific sample works were infringing copies.\u00a0 In reaching that conclusion, Bacon J placed weight on the scale and nature of Shein’s complaints. Shein’s June 2023 letter before action identified more than 8,000 listings, despite only providing comparison screenshots for a small proportion of them and further contained errors in certain URLs. The Court also noted that Shein itself had not established ownership of all of the rights it had asserted at that stage. Against that background, Temu removed the relevant listings before it had sufficient information to acquire the knowledge required for secondary infringement.<\/p>\n

Hosting Defence<\/strong><\/span><\/p>\n

Although unnecessary given her conclusions on infringement, Bacon J went on to consider the hosting defence under Regulation 19 of the Electronic Commerce (EC Directive) Regulations 2002.<\/p>\n

The Court held that Temu’s role in relation to the listings remained that of an \u201cintermediary\u201d and that the storage and display of the relevant content fell within the scope of the hosting defence.\u00a0 The Court further held that Temu neither had actual knowledge of unlawful activity nor awareness of facts or circumstances from which the unlawfulness of the specific listings would have been apparent.\u00a0 Once notified of the relevant complaints, Temu acted expeditiously to remove or disable access to the listings.\u00a0 Accordingly, Temu would have been entitled to rely on the Regulation 19 defence.<\/p>\n

Temu\u2019s Counterclaim<\/strong><\/span><\/p>\n

Temu also succeeded on liability under its counterclaim arising out of product listings removed pursuant to the interim injunctions obtained by Shein. Although the orders required removal of images rather than listings, the products could not realistically remain on sale without photographs. As such, the Court held that the injunctions were the effective cause of Temu’s losses. Quantum will be determined at a subsequent hearing.<\/p>\n

Why This Matters<\/strong><\/span><\/p>\n

The judgment provides clarity to marketplace operators that a platform will not be liable simply because infringing content appears somewhere on its site. The Court was focused on the role played by Temu in relation to the specific listings in issue and whether Temu had the requisite knowledge or awareness of unlawful activity before the listings were removed. On Bacon J\u2019s analysis, general awareness that infringement may occur on a large marketplace was not enough.<\/p>\n

If rights holders wish to pursue a platform rather than the seller that uploaded the content, they will need to be able to show more than similarity between images. They will need to put the platform in a position where the alleged infringement is sufficiently clear, including by identifying the works relied upon, the basis of ownership, and why the platform should be taken to know that the relevant listings are unlawful.<\/p>\n

The ownership analysis is also a useful warning for businesses relying on large volumes of third-party copyright and complex supply chains. Although Shein ultimately established title to sue in respect of the Strawberry Nightdress photographs, the judgment illustrates the value of securing clear copyright assignments at the point photographs are commissioned, rather than trying to retrospectively cure defects.<\/p>\n