On 2 December 2013, Mr Justice Kelly of the Commercial Court ordered the major Irish Internet service providers (ISPs) to block subscriber access to the KAT website otherwise known as Kickass Torrents. The decision comes only a number of months after Mr Justice McGovern granted the first website blocking order in Ireland in June 2013 in respect of The Pirate Bay. Matheson acted for UPC and Hutchison 3G in both proceedings.
Evidence was presented to the Commercial Court concerning the infringing nature of the KAT website and that infringements were being undertaken by subscribers of the five ISPs subject to the proceedings. The application was brought under the relatively new Section 40(5A) of the Copyright and Related Rights Act 2000, which was introduced into Irish law by a statutory instrument in 2012. This legislative provision provides that injunctions, as envisaged under Article 8(3) of the EU copyright in the information society directive, are available to rights-holders against intermediaries such as ISPs in order to bring copyright infringements to an end.
Mr Justice Kelly was satisfied with the evidence presented to the Court. None of the ISPs opposed the application. The Court was satisfied that it has jurisdiction to grant the relief sought and that it was appropriate to do so. The block will be implemented in the coming weeks.
It is likely that there will be future applications to block websites in this jurisdiction, particularly as the precedent and process is now set, and the recent experience in the UK has shown that such cases are expanding beyond music to film and sports broadcasting. The decision in Ireland also coincides with the recent opinion of the Advocate General in Case C-314/12 UPC Telekabel v Constantin Film. In that opinion delivered on 26 November 2013, the Advocate General stated that the blocking of websites which infringe copyright would be lawful as long as it involves specified measures to block a particular website even if there is a cost involved to the ISP and circumvention is possible by subscribers with relative ease. The Court of Justice is not bound by the opinion but may well follow its reasoning in due course.