Paramount Home Entertainment & Anor v British Sky Broadcasting & Ors

Under section 97A of the Copyright, Designs and Patents Act 1988, the court may grant a blocking injunction against an internet service provider where four jurisdictional requirements are met: the defendant is a service provider; a person uses its service to infringe copyright; the service is used for that infringement; and the provider has actual knowledge of it. The court must then assess proportionality and discretion. Website operators may communicate copyright works to the public where their intervention makes the works available to an indeterminate and substantial audience. A hyperlink may itself constitute a communication, but the relevant public must be identified. The rights engaged by a blocking order require an ultimate balancing exercise. Copyright protection may prevail where the infringement is deliberate, lawful alternative access exists, and compliance imposes only modest costs on the intermediary.

Film studios applied, in a representative capacity, for injunctions requiring six United Kingdom internet service providers to block access to four websites offering unauthorised films and television programmes. The application was unopposed, subject to the court being satisfied that the agreed relief was appropriate.

The principal issues were whether the statutory jurisdiction under section 97A was established, whether the target websites’ operators infringed copyright by communicating works to the public or authorising or participating in such communication, whether the activities were targeted at users in the United Kingdom, and whether the relief was proportionate.

1. Jurisdiction. The four requirements under section 97A were satisfied. The respondents were service providers. The evidence established copyright infringement by the target websites’ operators, use of the respondents’ services for that infringement, and actual knowledge on the part of the respondents.
2. Communication to the public. The concept was broad. An operator communicates a work where it intervenes to make the work available to members of the public who could not enjoy it without that intervention. It is enough that the work is made available for access; actual access is unnecessary. The operators materially intervened by categorising, referencing, moderating and providing search facilities for infringing content. Their activities made copyright works available to a new audience. The court agreed with the approach in Paramount Home Entertainment International Ltd & Others v British Sky Broadcasting Ltd & Others [2013] EWHC 3479 (Ch).
3. Hyperlinks and public targeting. ITV Broadcasting Ltd v TV Catchup Ltd (Case C-607/11) illustrated the breadth of communication to the public. Nils Svensson and Others v Retriever Sverige AB (Case C-466/12) established that providing access by hyperlink will normally be a communication and normally a communication to the public, but it was distinguishable because the target works were unauthorised and not already lawfully available to the public. The evidence showed that the target websites were directed at a sufficient section of the United Kingdom public.
4. Proportionality. The court applied the balancing approach approved in Rugby Football Union v Consolidated Information Ltd [2012] UKSC 55, [2012] 1 WLR 3333, and adopted in Golden Eye (International) Ltd v Telefonica UK Ltd [2012] RPC 28. No relevant Convention right had automatic precedence. The applicants’ copyright interests outweighed the competing rights of the operators and users. Lawful alternative channels were available, and the respondents’ compliance costs were modest.
5. Disposition. The injunctions were granted. The orders included liberty to apply for the respondents and, if necessary, the target website operators.