Injunction

Football Association Premier League Ltd v British Sky Broadcasting Ltd and other companies: Chancery Division: 16 July 2013

The claimant (FAPL) was the governing body of the football competition known as the Barclays Premier League (the Premier League). FAPL owned the copyright in recordings of television footage of all Premier League matches, and in artistic works which appeared within that footage. The defendants were the six main retail internet service providers in the UK and between them, they had a fixed line market share of some 94% of UK internet users.

FAPL brought a claim seeking an injunction against the defendants pursuant to section 97A of the Copyright, Designs and Patents Act 1988 (the 1988 act), which implemented article 8(3) of European Parliament and Council Directive (EC) 2001/29 (on the harmonisation of certain aspects of copyright and related rights in the information society, requiring the defendants to take measures to block or at least impede access by their customers to a website known as FirstRow Sports (FirstRow). The issue for consideration was whether the court had jurisdiction to make the orders requested. Consideration was given to regulation 2 of the Electronic Commerce (EC Directive) Regulations 2002, SI 2002/2013 (the Regulations).

The court ruled: section 97A of the 1988 act empowered the High Court to grant an injunction against a service provider, where that service provider had actual knowledge of another person using their service to infringe copyright. It was settled law that where a television broadcast was re-transmitted via the internet, there was no need to show that the 'public' to which the re-transmission was communicated was any different from the public to which the original transmission was addressed. The fact that it was a separate communication to the public by a different technical means sufficed. Any re-transmission of a terrestrial television broadcast via the internet would constitute a communication because it involved a 'specific technical means different from that of the original communication' and an 'intervention… which is different from that of the broadcasting organisation concerned'. That reasoning was equally applicable to re-transmission of satellite and cable television broadcasts via the internet (see [24], [33], [36] of the judgment).

In order for the court to have jurisdiction to make the orders sought by FAPL, four matters had to be established. First, that the defendants were service providers. Secondly, that users and/or the operators of FirstRow had infringed FAPL's copyrights. Thirdly, that users and/or the operators of FirstRow had used the defendants' services to do that. Fourthly, that the defendants had actual knowledge of that. Applying settled law to the instant case, the defendants were service providers within the meaning of regulation 2 of the Regulations, and hence within the meaning of section 97A of the act. Further, FirstRow had communicated FAPL's copyright works to the public in the UK and thereby infringed FAPL's copyrights in those works. Having considered the proportionality of the orders sought by the instant applications as between FAPL (and the supporting rightholders) and the defendants, and as between FAPL and the operators and users of FirstRow, the court was satisfied that the orders sought were proportionate (see [24], [25], [47], [59] of the judgment).

The court would make the orders requested (see [60] of the judgment). Dramatico Entertainment Ltd v British Sky Broadcasting Ltd [2012] All ER (D) 01 (Mar) considered; Twentieth Century Fox Film Corporation v British Telecommunications plc [2012] 1 All ER 806 considered; Public Relations Consultants Association Ltd v Newspaper Licensing Agency Ltd [2013] 2 All ER 852 considered; EMI Records Ltd v British Sky Broadcasting Ltd [2013] All ER (D) 350 (Feb) considered; ITV Broadcasting Ltd v TVCatchup Ltd: C-607/11 [2013] All ER (D) 116 (Mar) considered; Rugby Football Union v Consolidated Information Services (formerly Viagogo Ltd) [2013] 1 All ER 928 considered.

Ian Mill QC and James Segan (instructed by DLA Piper UK LLP) for FAPL; The defendants did not appear and were not represented.