The Football Association Premier League Ltd v Eircom Ltd t/a Eir

• Jurisdiction: Ireland
• Judge: Mr. Justice Robert Haughton
• Judgment Date: 15 July 2019
• Neutral Citation: [2019] IEHC 615
• Docket Number: Record No. 2019/5278P
• Court: High Court
• Date: 15 July 2019

[2019] IEHC 615

HIGH COURT

Haughton Robert J.

Record No. 2019/5278P

BETWEEN:

THE FOOTBALL ASSOCIATION PREMIER LEAGUE LIMITED

Plaintiff

- and -

EIRCOM LIMITED TRADING AS EIR

SKY IRELAND LIMITED

SKY SUBSCRIBERS SERVICES LIMITED

VIRGIN MEDIA IRELAND LIMITED

VODAFONE IRELAND LIMITED

Defendants

Blocking order – Necessity – Duration – Plaintiff seeking blocking order – Whether it was necessary to make the blocking order

Facts: Unauthorised live streaming of Premier League games caused considerable damage to the plaintiff, The Football Association Premier League Ltd. A similar matter appeared before Arnold J in the UK in The Football Association Premier League Ltd v British Telecommunications Plc & Ors [2017] EWHC 480 (Ch). The use of set top boxes was prevalent and the principal reason why the plaintiff wanted to block streaming servers. The reasons why blocking orders were sought were set out at paragraph 24 of the judgment of Arnold J: (i) "The video monitoring technologies used by FAPL now permit the identification of infringing streams with a very high level of accuracy in close to real-time during Premier League matches. The servers from which such streams emanate can be notified to the Defendants nearly instantaneously. (ii) Advances in certain of the Defendants' blocking systems will allow them to block and unblock IP addresses during the course of Premier League matches, in some cases automatically."

Held by the High Court (Haughton J) that (i) based on the evidence, it was necessary to make the blocking order; (ii) absent of any blocking order, there would be continued abuse via illegal live streaming of Premier League games and the blocking order was most effective and cost-effective; (iii) whilst the order was relatively complicated, it was logical with checks and balances; (iv) no issue arose in relation to cost sharing; (v) it was satisfied regarding the notification requirements to third parties and they were given the opportunity to apply to court; (vi) as this was the first application of its kind, it should review any further order to determine whether this order was effective at the time of the next application.

Haughton J held that he would stay the proceedings, grant the order sought to 30th June 2020, with liberty to the plaintiff to apply on or before that date to renew the order.

Order granted.

Judgment of Mr. Justice Robert Haughton delivered on 15 July 2019

1 This is the first time that this court is asked to make an order of this nature. The difficulty that gives rise to the present proceedings is the unauthorised live streaming of Premier League games which is causing considerable damage to the Plaintiff. Instead of watching Premier League games through legitimate and licensed services, some people are seeking to do so free of charge.

2 It is constructive to note what happened when a similar matter appeared before Mr Justice Arnold in the UK in The Football Association Premier League Ltd v. British Telecommunications Plc & Ors [2017] EWHC 480 (Ch) who, at paragraph 16, stated:

‘…there is increasing evidence of football fans turning to streaming devices which access infringing streams as a substitute for paid subscriptions to services such as those offered by Sky and BT. This undermines the value of FAPL's rights and, if unchecked, is likely to reduce the revenue returned by FAPL to football clubs, sports facilities and the wider sporting community. An added concern is the availability of live streams of Premier League match footage during the Closed Period (as to which, see FAPL v Sky at [9]), which deters attendance at those matches.’

3 Whilst the last condition may not have the same impact in this jurisdiction i.e. attendance at matches, the other factors are relevant. At paragraph 18, Arnold J stated:

‘The streaming server is the crucial link in the chain by which an unauthorised copy of footage of a Premier League match is transmitted to the consumer. A single server may be accessed using a number of different user interfaces. For example, the same stream on the same server may be accessed via multiple apps, websites and add-ons for set-top boxes. If access to that server is blocked, all of those access mechanisms will be disrupted.’

4 It would seem that the use of set top boxes is prevalent and the principal reason why the Plaintiff wants to block streaming servers. The reasons why blocking orders are now sought are set out at paragraph 24 of the judgment of Arnold J:

i) ‘The video monitoring technologies used by FAPL now permit the identification of infringing streams with a very high level of accuracy in close to real-time during Premier League matches. The servers from which such streams emanate can be notified to the Defendants nearly instantaneously.

ii) Advances in certain of the Defendants' blocking systems will allow them to block and unblock IP addresses during the course of Premier League matches, in some cases automatically.’

In relation to (i) above, Mr. Newman S.C. stated to the court that identification can occur within minutes.

5 There are other advantages to such blocking orders:

(a) The list of target servers may be re-set.

(b) The order is for a limited period of time. The first order by Arnold J lasted for 2 months (this was all that was left of the Premier League season).

(c) Safeguards: there is notice to each hosting provider as well as obligations to ensure that there was correct blocking.

6 The evidence before the UK in relation to academic literature in the judgment of Arnold J (at paragraph 50) dealing with the effectiveness of such orders is also notable. This academic...