Football Association Premier League granted first ever blocking order in Ireland
With modern technology, it can be hard for content producers, especially those who host live events such as sport, to protect their programming and intellectual property rights from the tech savvy. The introduction of “set-top” boxes and a large number of streaming sites located around the world has allowed viewers to circumvent pay walls and obtain monetised content for free. Football Assertion Premier League Ltd (FAPL) is one such content producer.
With survey evidence showing that 36 percent of 2000 adults asked admitted to viewing content they were not entitled to watch (19 percent admitting to specifically watching Premier League football in this manner) and 51 percent of these responding that they felt no guilt due to the ubiquity and commonality of streaming services and set-top boxes it is unsurprising that are being proactive.
FAPL have been granted the first ever order from the Irish courts compelling internet service providers (ISPs) to disable and block live streaming from illegitimate servers and hosts. The order was issued against Eircom/Eir, Sky Ireland, Sky Subscriber Services, Virgin Media Ireland and Vodafone Ireland. It is worth noting that even though the order is “against” these companies, the court was informed that they were all neutral or in favour of the order. This is unsurprising not least since these providers also allow users to view the content in question (i.e. live matches) via subscriptions and pay-per-view, and so are also missing out on revenues due to the illegal streaming.
The order finds basis in the European Parliament and Council Directive 2004/48/EC Article 11 which states (emphasis added):
“Member States shall ensure that, where a judicial decision is taken finding an infringement of an intellectual property right, the judicial authorities may issue against the infringer an injunction aimed at prohibiting the continuation of the infringement. Where provided for by national law, non-compliance with an injunction shall, where appropriate, be subject to a recurring penalty payment, with a view to ensuring compliance. Member States shall also ensure that rightholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe an intellectual property right, without prejudice to Article 8(3) of Directive 2001/29/EC.”
Exact details of the order itself have yet to be reported. However, details currently available indicate that the blocking technology will be dynamic in nature with the internet protocol addresses of the targeted streaming servers and hosts being updated at least twice during match time so that blocking can be enabled. The blocking technology will also be halted after a match is finished and reset each week.
The granting of the order is no surprise given that the UK High Court granted a similar order in 2017, the details of which can be found in  EWHC 480 (Ch). This order allowing blocking by ISPs in the UK was extended for the 2018/2019 Premier League Season.
As with the UK order, the Irish court had to weigh-up a number of factors before reaching a conclusion. Considerations that were first set down in prior cases C-466/12 Svensson v Retriever Sverige and Case C-160/12 GS Media v Sanoma Media Netherlands that needed to be taken into account included at least:
Is there a communication to the public: Yes as streaming is considered an act of communicating to a public. Furthermore, the act involves a conscious effort on the part of the targeted servers to connect and copy the source feed.
Is this a communication to a new public: Yes, as the target servers of the order are providing works (i.e. the matches) that would otherwise be unavailable without having paid for a specific service.
Will an order be effective and dissuasive: It was brought to the attention of the Judge that according to research carried out in regard of music and film media, blocking orders had reduced access by 90% with an overall reduction in piracy of 22%. These numbers go hand in hand with an increase in take-up of legitimate service providers such as BBC IPlayer services and Netflix.
One remaining question still not answered is who will bear the costs of the order. According to UK jurisprudence the majority of the costs fall with the rights holder and not the ISP. However, in Ireland the jurisprudence from cases such as Sony v UPC indicate that the ISP should bear the costs. As UK cases may only be persuasive in Ireland, this question is still open to the Irish courts.