Union Des Associations Européennes De Football v Eircom Ltd Trading as Eir

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice David Barniville
Judgment Date14 July 2021
Neutral Citation[2021] IEHC 507
Docket NumberRecord No. 2020/6450P
Between:
Union Des Associations Européennes De Football
Plaintiff
and
Eircom Limited Trading as Eir
Sky Ireland Limited
Sky Subscribers Services Limited
Virgin Media Ireland Limited
Vodafone Ireland Limited
Defendants

[2021] IEHC 507

Record No. 2020/6450P

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 pursuant to paragraph 9 of an order that Barniville J made on 29th September 2020, for a further order extending the “live blocking” injunction previously granted and further staying the proceedings until 31st July 2023, or the day after the last match period of the 2022/2023 UEFA competition season, whichever is the later. The reasons for the extension sought were set out in the grounding affidavit sworn by Mr Parry on behalf of the plaintiff. He said first: “the process of identifying and notifying Target Servers for blocking is now well established.” He referred back to paragraphs 15 and 16 of his affidavit, where he said that as far as he had been aware, and as far as anyone could establish, there had been no incidents of blocking of legitimate content; nor had there been any complaints in relation to the blocking process. He asserted that: “It is a robust process which involves ongoing communication between the Defendants and the Plaintiff (and its agents) in order to address any issues or concerns as soon as possible.” Second, Mr Parry stated that “despite the 2020 Order, there remains a clear need for continuing relief of the kind sought and that need is likely to continue for at least the next two years”. Third, he stated, in his belief: “that having a two-year term would reduce costs and associated court time, without any risk of prejudice to the Defendants or any other interested party.” Fourth, he stated “It is not anticipated that there will be any material change in circumstances over the period of the next two UEFA competition seasons which would require any alterations to the proposed Order”. There were a couple of other minor amendments to the order sought, and to the draft order, which had been provided to the court.

Held by Barniville J that it was appropriate, proportionate and cost effective to have a blocking order made in respect of the two-year period sought. It seemed to Barniville J that it did satisfy the requirement of the test that the duration of the order and the provisions for review be reasonable, and it seemed to him that the review period was appropriate in the particular circumstances of the case. Barniville J accepted the reasons that Mr Parry put forward to the effect that the two-year period was appropriate and that the provision for applications being made within that period dealt with any legitimate concerns that any interested party may have. Barniville J did not believe that the existence of such a period of review on the particular facts of the case gave rise to any concerns as to the certainty of the legal position of the parties. Barniville J held that any concerns that the parties had in relation to the operation of the order could be addressed in accordance with the terms of the order and the relevant paragraphs were 16, 22 and 17 of the order.

Barniville J held that it was appropriate to make the order sought by the plaintiff. Barniville J therefore extended the order that he made on 29th September 2020 in the terms of the draft order provided to the court, with the minor adjustments. Barniville J also stayed the proceedings further until 31st July 2023, or the day after the last match period of the 2022/2023 UEFA competition season, whichever is the later.

Application granted.

EX TEMPORE JUDGMENT of Mr. Justice David Barniville delivered on the 14 th Day of July, 2021:

Introduction
1

. This is an application by the plaintiff, UEFA, pursuant to paragraph 9 of an Order that I made on 29 th September 2020, for a further order extending the “live blocking” injunction previously granted and further staying the proceedings until the 31 st of July 2023, or the day after the last match period of the 2022/2023 UEFA competition season, whichever is the later.

2

. I made the previous Order on 29 th September, 2020 (the “2020 Order”) and set out my reasons for doing so in a judgment which I delivered on the same date: Union des Associations Européenes de Football v Eircom Ltd & Ors [2020] IEHC 488 (“ UEFA1”). In that judgment I set out in some detail the background to the application made at that stage by UEFA. I set out the relief sought, the relevant legal principles, the statutory principles involved and the test which the court had to apply on an application for a “live blocking” injunction. As I noted in UEFA1, considerable assistance was to be derived from the judgment of Hogan J. in the Court of Appeal in Sony Music Entertainment (Ireland) v UPC Communications Ireland Ltd [2016] IECA 231 (“ Sony”) and from the judgment of Haughton J. in the High Court in The Football Association Premier League Ltd v Eircom Ltd & Ors [2019] IEHC 615 (“ FAPL1”). I then considered the evidence that was adduced for the purposes of UEFA's application, and explained how I believed that the evidence was sufficient to satisfy the test for the grant of a “live blocking” injunction in this jurisdiction under Irish and EU law.

3

. The 2020 Order was expressed to last until the 31 st of July 2021 and made express provision for a review of the Order and its effectiveness. What is now sought by UEFA is an extension of the 2020 Order and, as part of that application, I am asked to consider the effectiveness of the Order.

Position of the Defendants
4

. The position of the named Defendants, who are all internet service providers (“ISPs”) and are mere conduits for the purposes of both Irish and EU law, is set out below. It is not alleged that any of the named Defendants have been guilty of any copyright infringement whatsoever.

5

. The position of the Defendants is that three of the Defendants — namely, Eircom, Virgin Media and Vodafone Ireland — have remained neutral in respect of the application to extend the 2020 Order on the terms sought by UEFA. The position of the two Sky Defendants is that they support the making of the Order and do not oppose the terms of the Order put in draft form before the Court by UEFA. As I have had cause to mention in some of the earlier judgments I have given in similar applications, that is a reasonable, responsible and appropriate position for the Defendants to take in respect of the application.

Changes to the 2020 Order
6

. The Order which UEFA seeks is worded in very similar terms to the 2020 Order. There is really only one substantive change which is sought to be made, and that is that the term of the extension being sought is effectively two years, rather than one year i.e. UEFA wishes to extend it to the 31 st of July 2023, at the latest. As we will see when we come to the evidence, the reasons for the extension sought are set out very clearly in the grounding affidavit sworn by Mr. Simon Lloyd Parry on behalf of the Plaintiff.

7

. There are a couple of other minor amendments to the Order sought, and to the draft Order, which has been provided to the Court and they were mentioned in the course of submissions by Mr. Newman S.C. The first amendment is on page 2 of the draft Order i.e. the reference to “ subscription television channel” is to be changed in that the reference to “ subscription” is to be taken out from paragraph 2(a)(ii). The second minor change is that there is to be provision made, in the event of any update to Schedule 1 of the draft Order providing for the match periods and game periods covered by the Order, that after the updated copy of that Schedule is provided to the Defendants, then a copy should be filed with the Registrar and placed on the Court file.

8

. The significant change sought is that the term of the Order is longer than the term of the existing Order. It is said that the 2020 Order was in dynamic form (which means it was in a form which was capable of being adapted and updated to address any developments taking place during the course of the term of the Order) and that it has operated effectively for a year without any known instance of over-blocking. Over-blocking is where access to legitimate services are interfered with by the terms of the Order. The issue of over-blocking is addressed in the evidence put before the court for the purposes of this extension application.

9

. Mr. Parry has also explained that two year “live blocking” orders have been made by the courts of England and Wales, including on applications made by UEFA, and, therefore, it is suggested that the Court should not have any concern with the two years extension sought as part of this application. It is averred also that a two-year term would reduce costs and associated court time and would not lead to any risk of prejudice to the Defendants or to any other interested party and I take that also to include legitimate internet users. It is also averred that the extended duration of two years is appropriate in circumstances where the Order in UEFA1 is now bedded down and has applied in this jurisdiction without incident or complaint.

10

. It is noted that the 2020 Order also made provision for liberty to or permission to apply, and for an application to be made for an “emergency brake” on the operation of the Order, and that none of that has had to be operated in the one year term in which the existing 2020 Order has been in...

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