High Court Ups the Ante on Pirated Football Matches

On March 13, 2017, in The Football Association Premier League Limited v British Telecommunications PLC, [2017] EWHC 480 (Ch), the High Court of Justice Chancery Division granted an injunction brought by the top league of British soccer (Premier League) against 5 domestic, retail internet service providers (collectively, the ISPs). The injunction required the ISPs to block servers hosting pirated game streams.  This is the first example of an injunction of this kind being used directly against servers as opposed to the websites that traditionally connected consumers to steams. 

This case results from the increased prevalence of Internet-connected set-top boxes that use an “app” model of delivering content.  These devices can allow access to high-quality, on-demand streams of infringing content. 

Section 97A of the Copyright, Designs and Patents Act 1998 empowers the High Court to grant an injunction against service providers where the providers have actual knowledge of another person using the service to infringe copyright.  These injunctions are granted discretionarily and must be proportionate with respect to the competing rights of those affected.

In finding the approach proportionate, the Court noted the relative effectiveness of blocking streaming servers as opposed to websites.  Servers are often foreign-hosted and can be integrated into multiple websites and/or set-up applications simultaneously.  In addition, technology now allows servers to be identified and blocked in real-time.

Before blocking servers, the ISPs must reasonably believe first that the server is predominantly used for enabling infringing streams and, second, that the service is not being used for any other substantial purpose.  A third technical requirement for identifying target servers remains confidential to order to preserve the integrity of the associated criteria.

The injunction is applicable only when Premier League games are being broadcast and the server list will be re-set each week.  The Order will expire at the end of this Premier League season so the impact and effectiveness can be assessed in anticipation of a similar order to cover the 2017-2018 season.

Summary By: Lisa Danay