Union Des Associations Europeennes De Football v Eircom Ltd T/A Eir

• Jurisdiction: Ireland
• Judge: Mr. Justice David Barniville
• Judgment Date: 29 September 2020
• Neutral Citation: [2020] IEHC 488
• Docket Number: [2020 No. 6450 P]
• Court: High Court
• Date: 29 September 2020

UNION DES ASSOCIATIONS EUROPÉENNES DE FOOTBALL

PLAINTIFF

AND

EIRCOM LIMITED T/A EIR, SKY IRELAND LIMITED, SKY SUBSCRIBERS SERVICES LIMITED, VIRGIN MEDIA IRELAND LIMITED

AND

VODAFONE IRELAND LIMITED

DEFENDANTS

[2020] IEHC 488

David Barniville J.

[2020 No. 6450 P]

THE HIGH COURT

COMMERCIAL

Injunction – Copyright and Related Rights Act 2000 s. 40(5A) – Proportionality – Plaintiff seeking an injunction requiring the defendants to block access to the IP addresses of servers which were being used by non-parties for the purpose of making available to the public the copyright works of the plaintiff without its consent – Whether the order sought was appropriate

Facts: The plaintiff, Union Des Associations Européennes De Football (UEFA), applied to the High Court seeking an injunction under s. 40(5A) of the Copyright and Related Rights Act 2000, as inserted by the European Union (Copyright and Related Rights) Regulations 2012, requiring the defendant internet service providers, Eircom Ltd t/a Eir, Sky Ireland Ltd, Sky Subscribers Services Ltd, Virgin Media Ireland Ltd and Vodafone Ireland Ltd, to block access to the IP addresses of servers which were being used, or which it was apprehended would be used, by non-parties for the purpose of making available to the public, the copyright works of UEFA without its consent. The first, fourth and fifth defendants, neither supported nor opposed the application and adopted a neutral position. The second and third defendants, supported the orders sought by UEFA.

Held by Barniville J that, having considered all of the evidence, the submissions made by counsel for the plaintiff and the stance adopted by the defendants, the order which the plaintiff sought in this case was clearly appropriate. Barniville J was satisfied that it would not impose any undue burden on the rights of internet users and would only impose a burden on the defendants which was appropriate and proportionate.

Barniville J held that, having considered the terms of the draft order, it was appropriate to make the order sought in the terms proposed.

Application granted.

EX TEMPORE JUDGMENT of Mr. Justice David Barniville delivered on the 29 ^th day of September, 2020

Introduction

1 The Plaintiff in these proceedings, UEFA, is one of six continental confederations for association football and is the governing body for association football in Europe. Its members consist of 55 of the national football associations of countries in Europe and Central Asia. It organises a large number of well-known European-wide club competitions, including the UEFA Champions League, the UEFA Europa League, the UEFA Super Cup, as well as well-known national team competitions, such as the European Qualifiers for the EUROs and the FIFA World Cup and The EUROs themselves, as well as several other competitions, including the UEFA Nations League and friendlies.

2 In these proceedings UEFA seeks an injunction under section 40(5A) of the Copyright and Related Rights Act 2000 (the “2000 Act”), as inserted by the European Union ( Copyright and Related Rights) Regulations 2012, requiring the Defendant internet service providers (ISPs) to block access to the IP addresses of servers which are being used, or which it is apprehended will be used, by non-parties for the purpose of making available to the public, the copyright works of UEFA without its consent.

3 The Defendant ISPs are what are described as “mere conduits” and it is not alleged that they have been guilty of any copyright infringement whatsoever.

4 The position adopted by the Defendants in the proceedings can be briefly summarised as follows. The 1st. 4th and 5th defendants, that is Err, Virgin Media and Vodafone Ireland, are neither supporting nor opposing the application and are adopting a neutral position.

5 The 2nd and 3rd Defendants, namely Sky Ireland and Sky Subscribers Services, are supporting the orders sought by UEFA.

6 I have already dealt today with an application by the Plaintiff to enter the proceedings in the Commercial List. All of the Defendants consented to that application and, therefore, I made an order entering the proceedings in the List.

7 I also acceded to an application by the Plaintiff, to which all of the Defendants also consented, that the proceedings should be heard on affidavit and that I should dispense with the delivery of further pleadings. I made those orders and directions and have proceeded to hear the Plaintiff's application immediately following the entry application.

8 I had the benefit of the papers being provided to me in advance and I have read the papers carefully before dealing with this application. I have been helpfully provided with detailed legal submissions which have made the delivery of this ex-tempore judgment a much easier exercise than might otherwise be the case.

Relief Sought by UEFA

9 As I have indicated earlier, the proceedings seek orders under section 40(5A) of the 2000 Act. Essentially the proceedings seek a “live blocking” injunction against the Defendant ISPs. It is the first time that UEFA has sought such an injunction in Ireland, but follows the making of similar orders by the High Court in Ireland on the application of the Football Association Premier League in The Football Association Premier League Limited v Eircom & Others [2019] IEHC 615 (“ FAPL1”) in 2019, which order was extended by me in a judgment that I delivered on the 15th of June 2020, in respect of the balance of the games for the 2019/2020 FA Premier League season and for the 2020/2021 season: The Football Association Premier League Limited v Eircom & Others [2020] IEHC 332 (“ FAPL2”).

10 Similar orders have been made in the Courts of England and Wales in favour of this Plaintiff (UEFA) and others in Union Des Associations Européennes de Football v British Telecommunications Plc & Ors [2017] EWHC 3414 (Ch) (Arnold J.). Like orders have also been made for boxing matches: Matchroom Boxing Ltd & Anor v British Telecommunications Plc & Ors [2018] EWHC 2443 (Ch) and Queensberry Promotions Ltd v British Telecommunications Plc & Ors (Order made by Arnold J. on 28 November 2018).

Legal Principles

11 The law regarding web blocking or live blocking orders or injunctions in this jurisdiction is well established. There are several cases in which such orders have been made, in particular, EMI v. Eircom [2009] IEHC 411, EMI v. UPC [2010] IEHC 377, EMI v. UPC [2013] IEHC 204, EMI v UPC [2013] IEHC 274 Sony v. UPC, 2 December 2013, unreported, High Court, ex tempore judgment (Kelly J., in respect of the Kickass Torrent (KAT) website), Twentieth Century Fox Film Corp & Ors v Eircom Ltd, unreported. High Court, ex tempore judgment (Cregan J., in respect of the Movie4k, Primewire and Watchseries websites), Twentieth Century Fox Film Corp & Ors v Eircom Ltd [2018] IEHC 54 and The Football Association Premier League Ltd v Eircom Ltd & Ors [2019] IEHC 615 at paragraph 15.

12 The application of the relevant statutory provision, namely section 40 (5A) of the 2000 Act was comprehensively considered by the High Court and by the Court of Appeal in Sony v. UPC [2015] IEHC 317 and [2016] IECA 23, albeit in a slightly different context.

13 The comments by Hogan J. in the Court of Appeal in Sony were discussed and applied by Haughton J. in the FAPL1 in 2019 (at paragraph 15 of that judgment) and that judgment was in turn approved by me in FAPL2 in 2020 (at paragraph 8 of my judgment).

14 In summary, in order for the Court to grant a website blocking order, the Court must be satisfied of the following:

1. The Defendant ISPs' services are being used to infringe copyright:

2. The proposed order will have the effect of preventing or terminating that infringement. in that it at least makes it more difficult or discourages it;

3. The proposed order will not impose “unbearable sacrifices” on ISPs (to use the terminology used by the Court of Justice of the European Union in UPC Telekabel Wien GmbH ( Case C-314/12) (Judgment delivered 27 ^th March, 2014)); and

4. The proposed order will not unnecessarily deprive internet users of the possibility of lawfully accessing content online.

15 The issue of the cost of implementing and the cost of applying such an order is also addressed in the case law. However, those issues do not arise on the facts of this case.

16 The Plaintiff has helpfully provided a draft Order which Counsel has taken me through in the course of the application. The draft Order is worded in a similar manner to the Order which the Court granted in FAPL1 and which was extended by me in my judgment in FAPL2.

17 I do note, however, that one of the confidential attachments, which is exhibited at confidential exhibit VK 4, renders the Order sought in this case more dynamic in line with the criteria set out earlier and the necessity for injunctions such as this to be effective in accordance with Article 3.2 of the IP Enforcement Directive 2004/48/EC, given that infringing servers that meet the criteria for blocking may be identified during the period of the relevant order.

18 My attention has been drawn to the judgment of Arnold J. in the High Court of England and Wales in the Football Association Premier League Limited v. British Telecommunications Plc & Others [2017] EWHC 480 (Ch) (“ FAPL(UK)”). At paragraphs 10 et seq., Arnold J. explained that the reason why orders are sought against streaming servers is because they constitute 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, web sites and add-ons for set top boxes. If access to that server is blocked, all of those access mechanisms will be disrupted”.

19 I completely agree. Those...