Leo Moore: The return of the live injunction
Leo Moore, partner at William Fry, examines a recent High Court decision and the potential implications for IP rights in sport.
A live blocking injunction involves Internet Service Providers (ISPs) identifying and blocking illegal streams for the period of a Premier League football match. The list of servers hosting illegal streams is reviewed periodically, meaning that new servers hosting illegal streams can be added to the blocking list.
In 2019, the English Premier League, trading as Football Association Premier League Limited (Premier League), was granted the first live blocking injunction (2019 Order) preventing the illegal viewing of Premier League matches pursuant to the Copyright and Related Rights Act 2000 (click here to see our previous article on that decision).
On 15 June 2020, Mr Justice David Barniville granted the Premier League an extension of the 2019 Order to include the remainder of the 2019/2020 season and the 2020/2021 season.
Position of the Internet Service Providers
The Commercial Court proceedings were brought against five of Ireland’s major ISPs; Eircom Limited, Sky Ireland Limited and Sky Subscribers Services Limited, Virgin Media Ireland Limited and Vodafone Ireland Limited. None of the ISPs opposed the application.
Criteria for Extending of the Injunction
Barniville J. agreed with the relevant case law as referred to in the decision granting the 2019 Order and re-iterated the relevant legal test for the granting of such blocking orders:
- that it must be necessary;
- the costs involved must not be excessive or disproportionate and the order itself should not be unduly complicated;
- the cost sharing proposals must be fair and reasonable;
- the order must respect the fundamental rights of the parties affected, including internet users; and
- the duration of the order and the provisions for review must be reasonable.
The Court noted that an extension of the 2019 Order must involve a review of the effectiveness of the Order and a consideration as to whether an extension is appropriate. Effectiveness does not need to be 100% so long as the remedy has a significant persuasive effect. Upon reviewing the evidence, the Court was satisfied that the 2019 Order was effective and that there was no “over-blocking”.
The evidence demonstrated:
- increased compliance rates, meaning an increase in the proportion of unauthorised live streams disrupted or removed within sixty minutes of detection;
- a decline on the percentage of football pirates using illegal streaming devices to access content; and
- no evidence of “over-blocking”.
Barniville J. held that the evidence showed a low risk to “over-blocking” and that any legitimate rights of internet users are fully respected. The Court accepted that the extension of the 2019 Order was necessary to protect the Premier League’s copyright and was therefore appropriate.
What Does this Mean?
Live blocking injunctions are an important tool for sports rights owners to protect their intellectual property rights ensuring that the value of any broadcasting deal is protected. Broadcasting deals are extremely lucrative, for example the most recent TV deal to broadcast Premier League matches was reportedly valued at £8.8 billion over a three-year period. The neutral position of the ISPs to the application certainly assists in the Premier League securing the injunction and it will now be for the ISPs to block any illegal streaming in real time during matches.