Last year, Sports Shorts covered the emergence of the first “live blocking injunctions”, which were obtained by the Premier League both in respect of the final portion of the 2016/17 season (in a test case before the High Court in March 2017) and subsequently in respect of the entire 2017/18 season.
The blocking injunctions require UK internet service providers (“ISPs”, such as Sky, BT, etc.) to block specified providers of copyright infringing streams of Premier League matches effectively on a ‘live’ basis. This is achieved using relatively new technology developed specially for the purpose of detecting and blocking of infringing streams on a near-live basis, something that was not previously possible or practical.
In recent weeks, UEFA has followed in the footsteps of the Premier League, with a successful application to the High Court for a similar injunction requiring the same ISPs to block, or at least impede, access by their customers to streaming servers which deliver infringing live streams of UEFA Competition matches to UK consumers.
The application was heard by Mr Justice Arnold, the same judge who heard, and granted, the Premier League’s applications last year. In a brief judgment of only 15 paragraphs, the judge granted the injunction, reasoning as follows:
- As in the Premier League applications, the Defendants were are the six main retail internet service providers (“ISPs”) in the United Kingdom. Again similarly to the Premier League applications, the defendants had an interest in the application succeeding: BT has since 2013 been the exclusive licensee of the rights to broadcast and transmit the UEFA Competitions in the UK, and currently pays approximately £360 million each season for these rights together with the rights in respect of the UEFA Super Cup. The application was also supported by the Premier League and by Formula One World Championship Ltd, whose content has been observed being streamed from some of the target servers listed by UEFA.
- The order sought by UEFA was very similar to the order sought by the Premier League last year and the application was supported by similar evidence to that relied upon by the Premier League.
- All of the Defendant ISPs supported the application, except one (TalkTalk, which neither supported nor opposed the application) and three of them even filed evidence in support of it. The terms of the order were agreed between the parties. However, as the application affected parties not before the court, the fact that the order was agreed between the parties did not mean the court did not have to consider whether or not the order requested was justified.
- The judge was satisfied that the order was justified for the same reasons as those in the Premier League cases. The only points the judge added were to note that a number of key conclusions in the Premier League applications had since been supported by decisions of the Court of Justice of the European Union.
- The judge indicated that evidence had been filed to suggest that the injunctions granted to the Premier League have been “very effective” and, importantly, that there had been no evidence of “overblocking” (i.e. inadvertent restriction of legitimate activities).
- Since the Premier League’s applications last year, the need for blocking injunctions has been emphasised even further by evidence which has more recently become available as to the scale of the problem of illicit streaming. The judge cited, in particular, the Federation Against Copyright Theft’s report “Cracking Down on Digital Piracy” (published in September 2017) in which the UK Intellectual Property Office was quoted as saying that it believed that, at a conservative estimate, a million set-top boxes with software added to them to facilitate illegal streaming had been sold in the UK in the last couple of years.
The concept of blocking injunctions therefore appears to be becoming the norm. However, in the background, making its way through the courts at present is the related issue of who should be responsible for the costs of implementing blocking injunctions. Given the scale of the problem of unauthorised online content, and the practical burdens involved in implementing a block (especially on a ‘live’ basis), it is easy to imagine how the costs might escalate. In the Premier League applications, there was no evidence to suggest that implementing the live blocking injunctions would be unduly costly but this appears to have been due to the fact that the stream detection technology had been developed and was already available and in use, which may not always be case if such injunctions become more widely used. The question of the responsibility for the costs of blocking injunctions is due to come before the UK Supreme Court later this year, which may provide another angle to the issue.