The Hon Mr Justice Arnold has granted blocking orders on behalf of the English Premier League against the six main retail ISPs, preventing their customers' from accessing an online streaming service hosting streams of unlicensed access to live sports.
The English courts have, once again, shown their commitment to preventing online infringement with respect to rights to live sports through the use of blocking orders against internet service providers ("ISPs").
On 16th July 2013, the Hon Mr Justice Arnold handed down his judgment imposing blocking orders against six of the main retail ISPs: Sky, BT, TalkTalk, Everything Everywhere, Telefónica and Virgin Media, with respect to the media streaming service website FirstRow Sports ("FirstRow").
FirstRow is an online service which provides online users with access to streams of television broadcasts to sporting events such as English Premiership football, rugby union, European PGA golf, darts, snooker and other sports.
The Football Association Premier League Limited (the "FAPL"), which owns the rights to the worldwide rights associated with the English Premier League, brought an action to seek blocking orders against the five ISPs which, in aggregate, account for 94% of the market share for fixed line UK internet users. A blocking order prevents an ISP from providing its customers with access to a particular site.
Chief Executive of Matchroom Sport Limited, rights holders of World Darts and World Snooker, Steve Dawson said: 'This is yet another strong and positive decision from the English courts in favour of sport and rights holders. Maintaining the value of broadcasting rights is vital to sport in this country; illegal sites devalue an important source of revenue which filters all the way down to grass root sports. Blocking orders and other court actions are an important tool against the unlicensed distribution of these rights and we welcome this decision on behalf of World Darts, World Snooker and British sport'.
The Courts have previously shown their preparedness to provide blocking orders injunctions against ISPs in the case of copyright infringing sites. In the case of Twentieth Century Fox Film Corp v British Telecommunications plc  EWHC 1981 (Ch),  Bus LR 1471 the Court made a blocking order against BT with respect to a website called "Newzbin2". The blocking orders were subsequently imposed against the other ISPs named in the FirstRow case for the Newzbin site.
In Dramatico Entertainment Ltd v British Sky Broadcasting Ltd  EWHC 268 (Ch),  3 CMLR the Court was asked to consider the infamous 'Pirate Bay' website which hosted peer 2 peer ("P2P") file sharing. Five of the ISPs involved in the FirstRow claim agreed with the claimants claim and did not oppose the making of orders under section 97A of the Copyright, Designs and Patents Act 1988 and the Court granted blocking order in respect of the Pirate Bay.
Under substantial pressure from rights holders across the world of entertainment, media and sports, the ISPs have regularly shown their willingness to engage in the prevention of copyright infringement. In the cases of Pirate Bay and Newzbin, the ISPs agreed (after some negotiation) to the terms of the orders being granted by the Court. In the case of FrontRow, the ISPs also did not oppose the making of an order, but Arnold LJ needed to consider whether the orders were justified and proportional.
To determine whether the order was to be awarded, the Court looked at FirstRow's operations and heard evidence that, in terms of unique users, FirstRow was the 239th most popular site in the UK in April 2013, with 9.98million unique users in that month alone. This placed the site as being more popular than well known, legitimate sites such as lastminute.com and ft.com. The Court estimated that FirstRow was generating between £5.3m and £9.5m in annual revenue from selling advertising to services which are not licensed. The Court also highlighted the value of the rights being infringed and noted that the FAPL had recently received £3.018Bn in the most recent auction of rights to show the EPL.
The effect of the FAPL's obligations under the UEFA statutes, specifically Article 48, are well known to English football fans: between 2.45pm and 5.15pm on Saturday afternoons, no live matches can be shown. The Articles are intended to promote attendance at stadiums during matches. But their effect was most recently highlighted in the now infamous case of Portsmouth publican Karen Murphy who used a decoder to receive the EPL matches via Greek satellite providers. Mrs Murphy's case went to the ECJ in Luxembourg.
In summarising, the Court granted the blocking order in full awareness and consideration of the rights granted under Article 11 EU Charter rights of the users of websites, who can obtain the copyright works from other sources, and the website owners who, in the words of the Court, are 'profiting from infringement on a large scale'.