March 27, 2017

Mr Justice Arnold has granted the Football Association Premier League a blocking order against the six main retail ISPs requiring them to block access to streaming servers which stream live Premier League matches to UK consumers. As the judge explained, consumers are increasingly turning to set-top boxes, media players and mobile device apps to access infringing streams, rather than web browsers running on computers. This means that traditional blocking orders (targeting websites) will not be able to prevent the growing majority of infringements, because these devices do not rely upon access to a specific website in order to enable consumers to access infringing material. Instead, such devices can connect directly to streaming servers via their IP addresses.

The judge found that the FAPL, whose application was supported by a number of rights holders including the FA and the RFU, had satisfied all the requirements of s 97A of the Copyright, Designs and Patents Act 1988, in particular that the users and/or operators of the “Target Servers” had infringed copyright in various copyright works within the footage, the operators by communicating those works to the public in the UK.

The judge was also satisfied that the order, which was supported by five of the defendants and was only for a short period (from 18 March 2017 to the end of the Premier League season on 22 May 2017), was proportionate taking into account the respective rights of the parties and internet users. It did not impair the rights of the ISPs to carry on business. To the limited extent that it interfered with the rights of internet users to impart or receive information, the interference was justified by a legitimate aim, namely preventing infringement of FAPL’s copyrights on a large scale, and it was proportionate to that aim: it would be effective and dissuasive; no equally effective but less onerous measures were available to the FAPL; it avoided creating barriers to legitimate trade; it was not unduly complicated or costly; and it contained safeguards against misuse. (The Football Association Premier League Ltd v British Telecommunications plc [2017] EWHC 480 (Ch) (13 March 2017) – to read the judgment click here).