UK - High Court issues further "live" blocking injunction in the UEFA case

[Len]

The High Court of England and Wales has granted UEFA an injunction under s. 97A Copyright, Designs and Patents Act 1988 for the duration of the 2017/2018 UEFA season, requiring the major UK internet service providers (ISPs) to block access by their UK consumers to streaming servers delivering infringing live streams of UEFA football matches. [Case: Union Des Associations Européennes De Football v British Telecommunications plc and others [2017] EWHC 3414 (Ch), 21 December 2017]

To put the decision in the context of recent case law: website blocking orders for copyright infringement have been available in the UK for a number of years under s. 97A Copyright, Designs and Patents Act 1988, which implements Article 8(3) EU Infosoc Directive as well as under the inherent jurisdiction of the English courts. Section 97A Copyright, Designs and Patents Act 1988 permits UK courts to grant "an injunction against a service provider where that service provider has actual knowledge of another person using their service to infringe copyright". The English courts have recently taken a more expansive approach to these orders as evidenced in two decisions by the High Court: Premier League matches Football Association Premier League Ltd v British Telecommunications Plc and others [2017] EWHC 480 (Ch), 13 March 2017 and FAPL v BT [2017] EWHC 1877 Ch., 25 July 2017 (FAPL cases).

UEFA followed FAPL's approach and filed a successful application to the High Court for a similar injunction requiring the same ISPs to take measures 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 decision in the UEFA case was considered on paper and handed down by Mr Justice Arnold in fifteen short paragraphs. The injunction in the UEFA case was granted on mostly similar terms as the injunctions in the two FAPL cases demonstrating that there is a trend towards flexible ("live") blocking orders. Importantly, the High Court in the UEFA case found that the target servers committed an act of communication, citing the CJEU's decision in C-610/15, Ziggo. Further, the High Court held that streaming is a different technical means to cable/satellite broadcasts which needs a separate authorization from the copyright owner, citing the CJEU's decision in C-265/16, VCAST. The High Court expressly noted that evidence had been filed to suggest that the injunctions granted in both FAPL cases had been “very effective” and that there had been no evidence of “overblocking”. Finally, the court pointed out that the need "for such orders has been emphasised by further evidence which has become available since then as to the scale of the problem of illicit streaming. By way of example, in a report entitled Cracking Down on Digital Piracy published by the Federation Against Copyright Theft in September 2017, 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."