Background and context
The question of when an online marketplace can be held liable for copyright-infringing material uploaded by its users is of growing importance to rights holders and platform operators alike. The UK High Court's recent decision in Roadget Business Pte Ltd v Whaleco UK Ltd [2026] EWHC 2165 (Ch), more commonly known as SHEIN v Temu, offers important guidance and a cautionary tale for any business contemplating large-scale online enforcement without first securing its chain of title.
SHEIN and Temu are rival online fashion retailers, both rooted in Chinese e-commerce and competing for UK market share. SHEIN alleged that Temu had permitted copyright infringement on a vast scale by allowing third-party merchants to use SHEIN's product photographs to market competing goods. A letter before action in June 2023 identified some 8,036 Temu URLs, later refined to 2,559 product listings.
Temu denied liability on several fronts. It challenged SHEIN’s title to the images and denied that it had itself copied or communicated them, arguing that it had no knowledge that any of them infringed. In the alternative, it relied on the hosting defence under Regulation 19 of the UK’s Electronic Commerce (EC Directive) Regulations 2002, which protects online intermediaries from damages for content innocently stored on behalf of others. Temu also counterclaimed for damages arising from product listings it said had been wrongly removed under interim injunction orders.
The narrowing of SHEIN's case
By the time the case reached trial in May 2026, SHEIN's claim had shrunk dramatically. To keep the trial manageable, the court looked at a small sample of 20 photographs. SHEIN dropped its claims over 15 of them, leaving just four images taken by its own staff and one supplied by a manufacturer, showing what has become known as the “Strawberry Nightdress”. SHEIN's explanation of how it came to own that last image changed so often that the judge described the result as “a set of submissions of quite extraordinary complexity”.
The Strawberry Nightdress shows what can go wrong when ownership of creative content is not properly documented. The photographs were taken by a freelance photographer who never signed over her copyright in writing and did not know the images were meant for SHEIN. In the court's view, she had simply given the supplier's owner, Mr Lin, permission to use the photographs as he wished. That meant he was entitled to let others use them too, including his cousin, who sold the same dress on Temu. Because the use was permitted, there was no infringement.
The fact that SHEIN dropped 15 of its 20 sample photographs before trial also shows how tangled its chain of title had become.
Infringement claims dismissed on all grounds
SHEIN's claims over the four staff photographs also failed. Each of its arguments as to why Temu itself should be held responsible was rejected.
Because Temu's servers are outside the UK, SHEIN could not argue that Temu had copied the images in this country. It argued instead that Temu was responsible for the copies created on shoppers' devices when they browsed the site. The court disagreed. The law permits the temporary copies that are an unavoidable part of viewing a webpage, and the judge noted that a shopper who simply views images on Temu's website “gains no independent economic advantage from that act”.
SHEIN also argued that Temu was itself making the images available to the public. The court held that simply running a platform on which sellers upload content is not enough. A platform will only be responsible if it deliberately helps to make content available while knowing that it is unlawful. The court found that Temu had not gone beyond “merely enabling or assisting” merchants to upload content.
Finally, SHEIN argued that Temu knew, or should have known, that the images were infringing. The court held that general awareness that some sellers might upload infringing material is not enough. A platform must know, or have reason to believe, that a particular image infringes. Temu took the relevant listings down within two working days of being notified, before it could reasonably have reached that view.
The hosting defence: a content-specific inquiry
Perhaps the most significant aspect of the judgment is its treatment of the hosting defence under Regulation 19. The court held that whether a marketplace may rely on this defence depends “not on the character of the marketplace’s business in the abstract, but on the role played by the operator in relation to the specific disputed content”.
In respect of the disputed photographs, Temu's role was found to be “of a mere technical, automatic and passive nature”. The court distinguished this from cases such as Montres Breguet v Samsung [2023] EWCA Civ 1478, where active pre-listing review and promotion of content had taken the platform outside the safe harbour.
However, the decision is not a charter for unqualified marketplace immunity. Modern e-commerce platforms are moving well beyond a neutral hosting role, using algorithms to steer what consumers see and working closely with their sellers. In a future case, conduct of that kind may well tip the balance towards a finding of active involvement.
Key outcomes and takeaways
SHEIN was also found liable under its cross-undertakings in damages for the wrongful removal of product listings under the interim injunction orders, with the quantum to be assessed at a later trial. The counterclaim is a stark reminder that aggressive enforcement campaigns carry real financial risk, and that a “shoot first, ask questions later” approach can prove costly for rights holders.
For rights holders in fashion and e-commerce, where product photography is often commissioned through complex international supply chains, the message is clear. Ownership records should be built at source, with written assignments secured from whoever actually created the images before any enforcement is contemplated. Supplier warranties alone will not establish title as a matter of law.
Online marketplaces will draw encouragement from the court's content-specific approach but should not read the decision as conferring blanket protection. Platforms that fail to act promptly on credible notices will find it harder to shelter behind Regulation 19.
The competition law counterclaim brought by Temu, alleging that SHEIN used anti-competitive agreements and conduct to undermine Temu's market position, is due to be tried at the Competition Appeal Tribunal in March 2027. The wider dispute between these two e-commerce giants is therefore far from over.
Sources
- Financial Times: Shein loses UK copyright lawsuit against Temu
Financial Times article - Roadget Business Pte Ltd v Whaleco UK Ltd [2026] EWHC 2165 (Ch)
The principal judgment relied on throughout the article, specifically paragraphs:- 4–7
- 40
- 51
- 60–61
- 80
- 116, 118, 122 and 221
- 235
- 247 and 277–279
- 284–287
- 311–316 and 329
- 351–360
- IPKat: SHEIN v Temu: Proving copyright ownership, and platform liability
Read the IPKat analysis - Shoosmiths: Shein v Temu: Testing the limits of marketplace liability
Read the Shoosmiths analysis
