The Football Association Premier League Ltd v Eircom Ltd Trading as Eir

• Jurisdiction: Ireland
• Judge: Mr. Justice David Barniville
• Judgment Date: 22 June 2021
• Neutral Citation: [2021] IEHC 425
• Court: High Court
• Docket Number: 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

[2021] IEHC 425

Record No. 2019/5278P

HIGH COURT

COMMERCIAL

Extension – Injunction – Necessity – Plaintiff seeking an order extending the terms of an order previously made by the High Court – Whether the continuation of the order was necessary

Facts: The plaintiff, the Football Association Premier League Limited (FAPL), applied to the High Court for an order extending the terms of the order previously made by the High Court (Haughton J) on 15th July 2019 (as extended by Barniville J on 15th June 2020) prescribing measures to be put in place for the blocking of illegal steaming of FA Premier League football matches during the 2021/2022 Premier League season.

Held by Barniville J that, having considered the evidence of the FAPL and the reasonable and responsible position adopted by the defendants, Eircom Ltd trading as Eir, Sky Ireland Ltd, Sky Subscribers Services Ltd, Virgin Media Ireland Ltd and Vodafone Ireland Ltd, the continuation of the order in the terms sought, with the critical amendments proposed by the FAPL, was necessary, reasonable, not disproportionate and fully respected the fundamental rights of the parties involved including the defendants and internet users. Barniville J was also satisfied that the duration of the order and the provisions for review were reasonable.

Barniville J therefore made the order in the terms of the draft order proposed to the Court with liberty to apply.

Application granted.

EX TEMPORE JUDGMENT of Mr. Justice David Barniville delivered on the 22 ^nd day of June, 2021

1 . This is my judgment on an application by the Football Association Premier League Limited (“FAPL”) for an Order extending the terms of the Order previously made by the High Court (Haughton J.) on 15th July 2019 (as extended by me on 15th June 2020) prescribing measures to be put in place for the blocking of illegal steaming of FA Premier League football matches during the 2021/2022 Premier League season.

2 . The named defendants are the major internet service providers (ISPs) in Ireland and for the purpose of the issues raised in these proceedings ‘mere conduits’ as provided for under Directive 2000/31/EC. They have all taken a responsible and reasonable position in response to this application as they did with the previous applications in these proceedings. The position of each of the Defendants on the previous application may be summarised as follows:

• (i) Eircom Limited is neutral in respect of the application and has no comments or changes to the proposed draft Order.

• (ii) The Sky defendants (i.e. the second and third defendants) support the application and are not opposing it and equally have no comments on the draft Order.

• (iii) Virgin Media Ireland Limited is neutral on the application and neutral on the terms of the draft Order.

• (iv) Vodafone Ireland Limited is neutral in respect of the application and the proposed Order.

3 . The Order made by Haughton J. on 15th July 2019 was in the nature of a “live blocking injunction” and was on fairly complex terms. The judgment delivered by Haughton J., The Football Association Premier League Ltd v Eircom Ltd & Ors [2019] IEHC 615 (“ FAPL1”), sets out the applicable law. Haughton J. directed that the proceedings be stayed and reviewed by the 30th June 2020. On 15th June 2020, I considered the further evidence provided by FAPL and after hearing the submissions of Mr. Newman S.C. and Mr. Gibbons B.L., I continued the Order to 30th June 2021. I gave an ex-tempore judgment in the matter, The Football Association Premier League Ltd v Eircom Ltd & Ors [2020] IEHC 332 (“ FAPL2”).

4 . In my judgment, I referred to the judgment of Haughton J. who, in turn, had referred to and applied the principles for “blocking Injunctions” set out by Hogan J. in the Court of Appeal in Sony Music Entertainment (Ireland) v UPC Communications Ireland Ltd [2016] IECA 231 (“ Sony”). I considered the additional evidence in June 2020 and was satisfied that the test applied in Sony and FAPL1 had been satisfied based on the evidence before me. The Order made on that day provided for a further stay of the proceedings until June 2021 and a further review in 12 months.

5 . This is an application to further extend the Order for the 2021/2022 Premier League season and for a further stay...