A recent decision of the Irish Commercial Court, a division of the High Court, has granted for the first time in Ireland, a blocking order on streaming in favour of The Football Association Premier League Limited.
In the matter of The Football Association Premier League Limited v. Eircom Limited trading as Eir, Sky Ireland Limited, Sky Subscribers Services Limited, Virgin Media Limited and Vodafone Ireland Limited [2019] IEHC 615, the High Court granted an order blocking the unauthorised live streaming of Premier League football matches. The order was granted against the Defendants who comprise Ireland’s main internet service providers (ISPs). The unauthorised streaming allowed individuals to watch Premier League games through illegitimate and unlicensed services free of charge. The result and/or consequence of the order has yet to be determined from a practical perspective but legally (where technology permits) it means that illegitimate servers or hosts may be identified, and blocked in real-time by ISPs across all platforms, including set top boxes, computers, apps and other devices.Judge Hogan set out the relevant test for blocking injunctions in his judgment in the Court of Appeal in Sony Music Entertainment (Ireland) Ltd & Ors v. UPC Communications Ireland Ltd [2016] IECA 231. In order to succeed in an application for this type of injunction, said injunction must be:(i) necessary;(ii) that the costs involved were not excessive or disproportionate and that the order itself should not be unduly complicated;(iii) that the cost sharing proposals were fair and reasonable;(iv) that the order respected the fundamental rights of the parties affected, including internet users and(v) that the duration of the proposed injunction and the provisions for review were reasonable.The Court was satisfied that the order sought in this case fulfilled the above criteria.The order will cease to have effect on the 30th June 2020 however the Plaintiff has the right to apply to the Court on or before this date to renew the order. The terms on which the order was granted on this occasion must be reviewed on any application for renewal.This is a significant development in the area of information technology and intellectual property. The order could not have been granted without the developments and advancements in technology which have enhanced the Plaintiff’s ability to determine with a high level of accuracy infringing streams. The court also took into consideration the role of the Article 11 of Directive 2004/48/EC (“IP Enforcement Directive”). Under this Directive, the Court has the authority (subject to certain considerations) to order the defendant to take appropriate measures to destroy, recall and/or definitively remove from the channels of commerce such infringing material.Similar orders have been made in other jurisdictions which have proven to be successful in deterring the unauthorised live streaming of Premier League football matches. In delivering his judgment, Judge Haughton stated that such a similar order has reduced access to these streaming sites by 90%. It will be interesting to see whether the same success levels shall be achieved in this jurisdiction and whether our legal system can keep up with the rapidly and ever-evolving technology.
The Plaintiff proposed that the “order shall cease to have effect upon expiry of the final match period of the 2019/2020 Football Association Premier League competition season or further order of the Court”.The Court granted the blocking order until the 30th June 2020 and placed a stay on the proceedings with liberty to the Plaintiff to apply on or before this date to renew the order.
