England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS
INTELLECTUAL PROPERTY LIST (CHANCERY DIVISION)

		Rolls Building Fetter Lane, London, EC2A 1NL
		20 September 2018

MR JUSTICE ARNOLD :

1. On 8 March 2017 I made an order on the application of Football Association Premier League Ltd ("FAPL") requiring the Defendants to take measures to block, or at least impede, access by their customers to streaming servers which deliver infringing live streams of Premier League match footage to UK consumers ("Target Servers"). I gave my reasons for making that order in Football Association Premier League Ltd v British Telecommunications plc [2017] EWHC 480 (Ch), [2017] ECC 17 ("FAPL v BT I"). Since then I have made two further orders in favour of FAPL and I have made two similar orders in favour of Union Des Associations Européennes De Football ("UEFA") in respect of streaming servers which deliver infringing live streams of UEFA match footage to UK consumers.
2. The Claimants ("Matchroom") now seek similar orders in respect of streaming servers which deliver infringing live streams of footage of professional boxing matches staged by Matchroom ("Events").
3. Matchroom typically organise around 22-23 Events a year. A number of the Events feature the British boxer Anthony Joshua, who currently holds four of the five world heavyweight titles. One such event is the forthcoming Event headlined by the bout between Mr Joshua and Alexander Povetkin at Wembley Stadium in London on 22 September 2018. Events typically run from 1700 to 2300 on the day in question and include a number of other fights in addition to the headline fight.
4. In the UK, the Events are broadcast by the Fourth Defendant ("Sky") pursuant to exclusive agreements with Matchroom under which (in the case of Events featuring Mr Joshua) Matchroom own the copyrights in the broadcasts and films and (in the case of other Events) Sky owns the copyrights, but has assigned the right to bring the present proceedings to Matchroom. Sky broadcasts the Events on either a standard or a pay-per-view basis ("Standard Events" and "PPV Events"). PPV Events are those of most interest to boxing fans, such as the Event on 22 September 2018. PPV Events are available on the Sky Sports Box Office channel and consumers must pay in the region of £20 to watch each PPV Event on top of their ordinary subscription. PPV Events can attract up to 1.3 million viewers. Sky pays Matchroom a substantial fee for the broadcasting rights and in addition shares the revenue from PPV Events with Matchroom. For these reasons Sky supports Matchroom's application, just as it did FAPL's applications. The other Defendants have either consented to or do not oppose the application.
5. The background to the present application is very similar to that described in FAPL v BT I at [10]-[19]. In short, Matchroom wish to combat the growing problem of live Event footage being streamed in infringement of Matchroom's and Sky's rights. In particular, there is evidence of very large numbers of infringing streams having been watched for Mr Joshua's most recent fights, thus depriving both Matchroom and Sky of substantial revenue from the respective PPV Events. Given the success which FAPL and UEFA have had in blocking access to Target Servers identified in accordance with the criteria specified in the respective orders, Matchroom seek a similar order.
6. The order sought in the present case differs from those made in favour of FAPL and UEFA in two main respects. First, because of the irregular timing of the Events, and in particular PPV Events, it is not possible for the Target Servers to be identified in quite the same way. Although the criteria are very similar, they are to be applied by a particular form of monitoring carried out in a seven-day period prior to each Event. The details of this are confidential, in order to prevent circumvention. While it creates a theoretically greater risk of over-blocking, Matchroom's evidence is that in practice there should be no real difference.
7. Secondly, whereas the FAPL and UEFA orders cover a season (or part of a season) and list all the matches within the relevant period, this is not possible in the present case since the order is to last two years and Events are not fixed sufficiently far in advance. Accordingly, the order provides for Events to be notified to the Defendants at least four weeks in advance.
8. Having considered the evidence and the terms of the order, I am satisfied that the Court has jurisdiction to make the order and that it is appropriate to exercise my discretion to do so for essentially the same reasons as I gave in UEFA v BT I. In short, the order is proportionate. It does not impair the rights of the Defendants to carry on business. To the limited extent that it interferes with the rights of internet users to impart or receive information, the interference is justified by a legitimate aim, namely preventing infringement of Matchroom's and Sky's rights on a large scale, and it is proportionate to that aim: it will be effective and dissuasive, no equally effective but less onerous measures are available to Matchroom, it avoids creating barriers to legitimate trade, it is not unduly complicated or costly and it contains safeguards against misuse.
9. It is agreed that there should be no order as to costs.