The Football Association Premier League Ltd v British Sky Broadcasting Ltd & Ors

Section 97A of the Copyright, Designs and Patents Act 1988 permits a blocking injunction against an internet service provider where users or website operators infringe copyright through the provider’s service and the provider has actual knowledge of that infringement. A website may itself communicate copyright works to the public even where the underlying stream technically originates from another website, if it materially intervenes by aggregating, indexing and presenting access to the streams. Internet retransmission is a separate communication using a specific technical means, so it is unnecessary to prove a new public. The court must still assess proportionality. Agreed terms do not remove that responsibility. Narrow, targeted orders may be proportionate where infringement is extensive, alternative remedies are ineffective, safeguards exist and lawful access remains available.

The claimant, the governing body of the Premier League, sought orders under section 97A of the Copyright, Designs and Patents Act 1988 requiring six major UK internet service providers to block or impede access to FirstRow Sports. FirstRow indexed and aggregated links to unauthorised streams of sporting broadcasts, including Premier League matches, although the streams were supplied by third-party user-generated-content websites.

The defendants did not oppose the agreed form of order. The court nevertheless had to determine whether the statutory jurisdictional conditions were met, whether FirstRow’s operators and users infringed copyright, whether the defendants had actual knowledge, and whether the proposed orders were proportionate.

The application was granted and the requested blocking orders were made.

1. The defendants were service providers for the purposes of section 97A of the Copyright, Designs and Patents Act 1988. The jurisdictional requirements were that the defendants were service providers; users or operators of FirstRow infringed copyright; they used the defendants’ services to infringe; and the defendants had actual knowledge of that use.

2. FirstRow’s operators communicated the claimant’s copyright works to the public. Applying ITV Broadcasting Ltd v TVCatchup Ltd [2013] ECDR 9, retransmission over the internet was a communication because it used a specific technical means different from the original transmission. It was unnecessary to establish a new public. In any event, the evidence established access by persons not legitimately entitled to view the broadcasts.

3. Although the streams technically emanated from user-generated-content websites, FirstRow materially intervened by aggregating and indexing streams and presenting them through convenient links and frames. It was therefore responsible for the communication. Alternatively, it was jointly liable with the user-generated-content sites.

4. The communication was to the public in the UK. The relevant indicators included the English-language site, UK advertising, substantial Premier League content, UK popularity, UK traffic and discussion on UK-focused blogs and forums. Publicans who used FirstRow to screen matches also communicated the works to the public.

5. The operators and users used the defendants’ services to infringe, and the defendants had actual knowledge following detailed letters before action and supporting evidence. The court did not need to decide whether FirstRow’s operators also authorised the publicans’ infringements.

6. The court adopted the proportionality approach in EMI Records Ltd v British Sky Broadcasting Ltd [2013] EWHC 379 (Ch). The orders were proportionate because implementation costs were modest, infringement was large-scale, other effective remedies were unavailable, the orders were targeted and safeguarded, and lawful sources remained available. The interests of the rightholders outweighed the Article 11 rights of users, operators and, to the extent engaged, the defendants.