Website blocking injunctions – High Court takes another swing at illegal streaming

One of the silver linings of lockdown living for many (and no doubt the bane for some) has been the abundance of live sport available on our TV and laptop screens. However, the increased number of people watching sport from the comfort of their own sofa has heightened one of the major risks for leagues and broadcasters – illegal streaming in breach of copyright.

In recent years, one of the key weapons in the right holders’ arsenal has been a website blocking injunction granted under section 97A of the Copyright, Designs and Patents Act 1988 (“CDPA”). An injunction may be granted against an internet service provider (“ISP”) that has "actual knowledge" of another person using their service to infringe copyright (s. 97A(1) CDPA), taking into account all relevant circumstances including whether a service provider has received a compliant notice under the Electronic Commerce (EC Directive) Regulations 2002 (SI 2002/2013) (s. 97A(2) CDPA).

In Matchroom Boxing Ltd and another v British Telecommunications plc and others [2020] EWHC 2868 (Ch), Matchroom Boxing (who run boxing events) applied for a further injunction to block websites that were streaming broadcasts of boxing matches in infringement of copyright - this followed a previous order in 2018 (extended in May 2019), which required ISPs to take reasonable steps to disable access to IP addresses which made live streams available. Matchroom sought an order on similar terms to one granted by the same judge in July to the Football Association Premier League Limited (“FAPL”). That order contained an updated version of a mechanism which dynamically blocks websites in real time which was first used in 2017 (FAPL v British Telecommunications plc [No 1] [2017] EWHC 480 (Ch)). In that judgment, Arnold J decided this kind of "live" blocking approach was appropriate and, amongst other things, did not give rise to a significant risk of over-blocking.

In the present case, Birss J was satisfied that such an order was appropriate, which left two matters relating to confidentiality:

1) Matchroom asked that the court keep Schedule 2 (a list of target IP addresses) and Schedule 3 (detection conditions and requirements which an IP address must satisfy in order for that IP addressed to be notified so that it will be blocked) of the order confidential because this information would help those seeking to circumvent the web blocking system to avoid it. The court agreed there was a tangible risk of undermining the blocking and assisting the infringers, and removed them from the public order.

2) However, Birss J raised the concern that while the details should remain confidential, it may be appropriate to devise a way for third parties with a legitimate purpose to have access to this information on suitable terms. Counsel explained that in fact a practice of a sort already exists – FAPL had shared certain details of the dynamic web blocking arrangements, on a confidential basis, with Matchroom and others.

Birss J appended a non-confidential version of the terms of the order for the benefit of third parties who might wish to take advantage of a similar approach - this will be a welcome sight to any company (and their lawyers) trying to draft a similar order.

The importance of broadcasting to the sports industry does not need to be repeated, but ballooning revenues have made it more crucial than ever for rights holders to crack down on copyright infringement. The English Football League estimated £430k has already been lost to piracy this season, and of course the issue is not just limited to sport. In May, the UK Federation Against Copyright Theft (FACT) claimed illegal film streaming links nearly trebled during lockdown (see our Lens post here) and more recently the government announced it is looking into the impact of streaming on the future of the music industry (see our Lens post here).

Despite increased efforts to tackle piracy, the issue is not likely to go away any time soon. A reported 13 million people watched Andy Ruiz Jr shock Anthony Joshua and the boxing world in 2019 on illegal streams and Matchroom’s CEO referred to the evolving nature of the infringement as "pirates develop increasingly sophisticated and intricate ways in which to circumvent blocking." In the meantime, this case and, in particular, the appended order will be of interest to organisations looking to take the fight to illegal streaming, even if the contest may feel more akin to whack-a-mole than Queensberry Rules.