Union Des Associations Europeenes De Football v. Eircom Limited (trading as EIR), Sky Ireland Limited, Sky Subscribers Services Limited, Virgin Media Ireland Limited, Vodafone Ireland limited Commercial Court Record No. 2020/6450P
The illegal streaming of real time live match broadcasts has increased in tandem with the improvement of technology and signal quality in recent years and results in substantial losses to the owners of broadcast rights.
Website blocking and more recently streaming server injunctions under Article 8(3) of Directive 2001/29/EC and Article 11 of Directive 2004/48/EC (“the IP Enforcement Directive”) are well established in Ireland, as they are in many EU member states. The first “live” streaming blocking injunction was granted in Ireland in 2019 to the Football Association of Ireland against various ISPs[1].
The general principles are well established. It is settled that for the grant of such a blocking order the Court must be satisfied of the following:
- The Defendant ISPs’s services are being used to infringe copyright;
- 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;
- The proposed order will not impose undue sacrifices on ISP’s;
- The proposed order will not unnecessarily deprive internet users of the possibility of lawfully accessing content online;
- That the costs involved are not excessive or disproportionate and any cost sharing proposals are reasonable.
In September 2020 UEFA brought an application before the Commercial Court division of the Irish High Court, seeking a live blocking injunction that required 5 ISPs to block access to the IP addresses of servers used by unidentified non-party infringers to stream live UEFA match broadcasts to the public. As new infringing IP addresses may be identified before or during live matches, UEFA sought a “dynamic” Order which would facilitate the addition of such IP addresses provided that they met the criteria for blocking as specified in the Order and based on there being appropriate safeguards in place.
The ISP defendants either supported or took a neutral position to the application and there was no issue as to the costs of the implementation or application of the Order. The Court recognised the practical need for UEFA to be able to add in additional IP addresses that were identified immediately before or during matches. In the circumstances and provided that newly identified IP addresses met the specified criteria, the Court was prepared to grant an Order in “dynamic” terms on the basis that an injunction of this kind should be effective in accordance with Article 3.2 of the IP Enforcement Directive 2004/48/EC.
This is the first dynamic Order for a streaming server injunction granted in Ireland. Acuatus was instructed by the London office of CMS and the in-house team of UEFA in Switzerland.
[1] The Football Association Premier League Limited v Eircom & Others [2019] IEHC 615
