The Irish recording industry issued the proceedings in December 2012 against five Irish ISPs namely UPC, Vodafone, Digiweb, Imagine and 3 with O2 subsequently added to the proceedings in January 2013. The case was admitted into the Commercial Court on consent by Mr Justice Kelly. An order was also made to permit the proceedings to progress without the joinder of the relevant copyright owners where the plaintiffs are the exclusive licensees in the State.
The proceedings were grounded on new legislation which came into force in February of last year. The record companies were unsuccessful in obtaining such an order against UPC in 2010 based on the legislative regime at the time. Mr Justice Charleton held in those previous proceedings that article 8(3) of the copyright directive had not been properly transposed into Irish law. The new legislation, The European Union (Copyright and Related rights) Regulations 2012, inserts a new Section 40(5A) into the Copyright and Related Rights Act 2000 and provides that rightsholders can seek injunctions under article 8(3) against intermediaries.
The case generated much interest as it was the first case under the new law. Indeed, an application was made by Digital Rights Ireland Limited to join the proceedings as an amicus curiae to assist the Court. That particular application to join the proceedings was refused by Mr Justice Kelly in May on the basis that Digital Rights Ireland Limited could not be considered a neutral party in circumstances where: (i) its members and legal team had actively lobbied against the introduction of the new statutory instrument at the time; (ii) the company would not disclose who was funding the participation; and (iii) the company had no public law role. The Court was also cognisant of the fact that the jurisdiction to permit an amicus curiae should be sparingly exercised and should be appointed at appellate level as distinct from at the trial of the action.
The substantive application to block The Pirate Bay was heard by Mr Justice McGovern on 30 May 2013 and judgment given on 12 June 2013. McGovern MJ considered the previous judgment of Mr Justice Charleton in 2010 where the judge stated that “were it available, I would grant it” in respect of the Court’s power to grant a website blocking order against The Pirate Bay. McGovern MJ considered that the lacuna in the law had now been filled through the introduction of the new statutory instrument and that it was appropriate for the Court to grant the order that the music companies sought. The judge also considered it unnecessary to require the music companies to make a fresh application to Court on each occasion that The Pirate Bay changed its location on the Internet. This was dealt with through a protocol to the order to facilitate updates to the block list from time to time.
Each of the ISPs had agreed to pay the costs of implementation of the relief should it be granted. The ISPs did seek the costs of the proceedings. Mr Justice McGovern considered the decision of Mr Justice Arnold in Twentieth Century Fox Film Corporation v British Telecommunications plc on the issue of costs.
McGovern MJ acknowledged that none of the defendant ISPs had maintained “all-out opposition” to the application so there was no question of the music companies recovering costs from the ISPs. However, on the basis that the issue had been previously determined by the Irish courts, albeit with an identified lacuna regarding the transposition of article 8(3), no new ground was covered in the proceedings. Whilst the issues raised were legitimate concerns for the defendant ISPs, in particular over-blocking, the Court considered it fair and proportionate that the defendants bear the costs of the proceedings. One ISP received a portion of its costs for input into the protocol to the order.