The English Premier League, trading as Football Association Premier League Limited (Premier League), was recently granted Ireland’s first court order preventing the illegal viewing of Premier League matches, following the hearing of a motion by the Commercial Court. The Premier League brought the action against five of Ireland’s major internet service providers (ISPs): Virgin Media Ireland Ltd, Sky Ireland Ltd, Sky Subscribers Services Ltd, Vodafone Ireland Ltd and Eircom Ltd, trading as Eir. The order compels the ISPs to block the illegal live streaming of Premier League matches.
The Premier League has become increasingly concerned by the significant rise in illegal broadcasting and streaming of its matches in recent years. In addition to online streaming websites, illegal viewers are using android boxes (known as set-top boxes) which are pre-loaded with apps that allow for the streaming of television services, either for free or for a relatively cheap subscription fee. A recently published study, commissioned by an unnamed Premier League club, estimated that illegal streaming costs teams roughly £1m of sponsorship value per game.
Injunctions secured in other jurisdictions
In recent years the Premier League was successful in obtaining blocking orders from the High Court of England and Wales compelling ISPs in the UK to block servers that were hosting illegal streams of matches. According to the Premier League, this resulted in 175,000 of such illegal streams being blocked or removed throughout the 2018/19 season. Similar injunctions and anti-piracy orders were also granted in other countries such as Singapore and the Netherlands before the Premier League turned its attention to Ireland. The application before the Commercial Court was the first application heard by an Irish Court targeting the servers that host the streams, rather than the streaming websites or end users themselves.
Legal Basis for the Order
Article 8(3) of Directive 2001/29/EC (the Copyright Directive) obliges Member States to ensure that all rightsholders, such as the Premier League, “are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right”. The right of the Premier League to apply for an injunction in these circumstances is reiterated at Article 11 of Directive 2004/48/EC (the IP Enforcement Directive).
Mr Justice Haughton for the Commercial Court in this case referred to the previous Court of Appeal judgment in Sony Music Entertainment (Ireland) Ltd & Ors v. UPC Communications Ireland Ltd IECA 231 where the relevant legal test for the granting of such blocking orders was set:
- it must be necessary;
- the costs involved must not be excessive or disproportionate and the order itself should not be unduly complicated;
- the cost sharing proposals must be fair and reasonable;
- the order must respect the fundamental rights of the parties affected, including internet users; and
- the duration of the order and the provisions for review must be reasonable.
In granting the blocking order in favour of the Premier League, Mr Justice Haughton held that absent of any blocking order, there would be continued infringement via illegal live streaming of Premier League games. Mr Justice Haughton granted an order to 30 June 2020, after the end of the 2019/2020 season, with liberty to the Premier League to apply on or before then to renew the blocking order for next season.
Protection of Intellectual Property to preserve their value
Content provided by illegitimate servers or hosts will now be targeted and blocked in real time by ISPs using the latest advances in technology and across all platforms, including computers, apps, set-top boxes and other devices. The most recent TV deal to broadcast Premier League matches was reportedly valued at £8.8 billion over a three-year period. The blocking order granted by the High Court will allow the Premier League to protect the intellectual property in those matches, thereby preserving their value.
Contributed by Patrick Murphy