Dramatico Entertainment Ltd & Ors v British Sky Broadcasting Ltd & Ors

The High Court may grant a website-blocking injunction under section 97A of the Copyright, Designs and Patents Act 1988 where the applicant establishes that the defendant is a service provider, another person uses its service to infringe copyright, and the defendant has actual knowledge of that infringement. The court must independently assess proportionality. Agreement between professionally represented parties does not determine proportionality as against affected users who are not parties. IP-address blocking is appropriate where the relevant website’s address is not shared and the measure is proportionate.

Record companies sought injunctions against six principal internet service providers under section 97A of the Copyright, Designs and Patents Act 1988. The injunctions were intended to block or impede access to The Pirate Bay, a peer-to-peer file-sharing website.

In an earlier judgment in the same proceedings, the court held that users and operators of The Pirate Bay infringed the claimants’ copyrights. Five defendants then consented to, or did not oppose, orders in agreed terms. The court had to determine whether it had jurisdiction and whether the proposed orders were proportionate, including whether IP-address blocking was appropriate.

1. Jurisdiction. The defendants were service providers within section 97A of the Copyright, Designs and Patents Act 1988, by reference to regulation 2 of the Electronic Commerce (EC Directive) Regulations 2002. Users and operators of The Pirate Bay used the defendants’ services to infringe copyright, and the defendants had actual knowledge of that infringement.
2. Fundamental rights. The court’s earlier reasoning concerning Article 10 of the European Convention on Human Rights remained applicable. The later CJEU judgments in Scarlet v SABAM and SABAM v Netlog, including their reference to Article 11 of the Charter of Fundamental Rights of the European Union, did not call that reasoning into question.
3. Proportionality. The court had an independent duty to assess proportionality. Article 3(2) of the Enforcement Directive required proportionality in remedies for intellectual-property infringement, and the court had to strike a fair balance between copyright protection and affected individuals’ fundamental rights. Negotiated terms could be assumed proportionate between the parties, but not necessarily as between the claimants and users who were not before the court. The proposed orders were proportionate.
4. Technical terms. IP-address blocking was appropriate because The Pirate Bay’s IP address was not shared with another website. The agreed orders were therefore made, including the requirement for IP-address blocking.

First-instance decision. The judgment records an earlier judgment in the same proceedings, [2012] EWHC 268 (Ch) , in which the court held that users and operators of The Pirate Bay infringed copyright.