The Football Association Premier League Ltd v British Telecommunications Plc & Ors

Under section 97A of the Copyright, Designs and Patents Act 1988, the court may require internet service providers to block access to servers used to infringe copyright where the statutory jurisdictional requirements are met. The court must then decide whether the order is proportionate, having regard to the competing rights affected. Relevant considerations include the importance of the copyright, the order’s effectiveness and dissuasive effect, the availability of less onerous measures, its cost and complexity, the risk of barriers to legitimate trade, and safeguards against misuse. A targeted, time-limited and adjustable order may be proportionate where the servers are predominantly dedicated to infringement and lawful activity is unlikely to be materially affected.

The claimant, which owned copyright in Premier League match footage and related works, sought an injunction requiring six major UK internet service providers to block or attempt to block access to streaming servers delivering infringing live streams. The application differed from earlier website-blocking proceedings because it targeted servers rather than websites and proposed a live, match-weekly updated order.

The court had to determine whether the statutory jurisdiction under section 97A was established and, if so, whether the agreed order should be made despite its effects on service providers, internet users and third parties.

1. Jurisdiction. The defendants were service providers. Users in the United Kingdom infringed copyright by copying the works while streaming them, and the operators infringed by communicating the works to the public, authorising copying or acting as joint tortfeasors. The communications were directed to the UK public. The defendants’ services were used to commit those infringements and the defendants had actual knowledge of that use.
2. Discretion and proportionality. The overriding question was whether the order was proportionate having regard to the competing rights affected. FAPL had a legitimate and public interest in protecting valuable copyright. The order did not impair the substance of the defendants’ freedom to carry on business. Any interference with users’ freedom to impart or receive information was justified because the targeted servers were exclusively, or almost exclusively, engaged in infringing activity during the relevant periods.
3. The order was likely to be effective and dissuasive. Blocking the crucial server link was likely to be more effective than blocking websites, and improved monitoring and blocking technology allowed rapid intervention. The availability of substitute servers did not prevent the order from being effective, particularly because the order allowed further servers to be identified and blocked.
4. FAPL had no alternative measure that was equally effective and less onerous. The order was not unnecessarily complicated or costly, avoided significant barriers to legitimate trade, and contained safeguards including hosting-provider notices, variation and set-aside provisions, confidentiality protections, weekly resetting and a short duration.
5. The court therefore had jurisdiction and exercised its discretion to make the order. The order took effect on 18 March 2017 and expired on 22 May 2017. There was no order as to costs.