Matchroom Boxing Ltd v British Telecommunications Plc
| Jurisdiction | England & Wales |
| Judge | Mr Justice Birss |
| Judgment Date | 29 October 2020 |
| Neutral Citation | [2020] EWHC 2868 (Ch) |
| Date | 29 October 2020 |
| Docket Number | Case No: IL-2018-000155 |
| Court | Chancery Division |
[2020] EWHC 2868 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
INTELLECTUAL PROPERTY LIST
Royal Courts of Justice
The Rolls Building
7 Rolls Buildings
Fetter Lane
London EC4A 1NL
Mr Justice Birss
Case No: IL-2018-000155
Mr Jaani Riordan (instructed by DLA Piper) for the Applicants
The respondents did not appear
Hearing date: 23 rd October 2020
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This application concerns the operation of a website blocking injunction. The applicants (“Matchroom”) run boxing events. They submit that a website blocking injunction is required to prevent access to certain IP addresses which are being used to infringe their copyright relating to live streams of the events.
By an order sealed on 20 th September 2018 (the “2018 Order”), Arnold J (as he was then) granted Matchroom a website blocking injunction pursuant to section 97A of the Copyright, Designs and Patents Act 1988 (“ CDPA 1988”). That order was extended and varied by a sealed order on 22 nd May 2019 by Arnold J (the “2019 Order”).
The 2018 Order (as varied) requires the respondents to take reasonable steps to disable access to IP addresses which make the live streams available. The Order contains a “sunset clause” whereby it ceases to have effect on 1 st October 2020.
This application was issued on 28 th September 2020 and first came before me on paper in the week of 12 th October 2020. The applicants had explained that there was to be a boxing event between Lewis Ritson and Miguel Vazquez scheduled for 17 th October 2020. They sought what they characterised as an extension and variation of the 2018 Order ahead of that date. The applicants sought an order running for a further two-year term to expire on 1 st October 2022.
As I say, the application has been made on paper. Normally applications of this kind are made that way and they can often be handled that way without difficulty. However one ostensible reason why this one had been made on paper was because it was urgent. That is not a wise approach. Paper applications are not necessarily quicker. However after making enquiries, I was provided with a skeleton argument and informed that the first, second, third, fifth and sixth respondents had by then confirmed that they would not oppose the application. The fourth respondent had filed evidence in support of it. I was satisfied it could be dealt with on paper to an extent.
The applicants sought an order in similar terms to the website blocking order I made in a different case on 27 th July 2020. That order concerned the same respondents as in this application, and the Football Association Premier League Limited (“FAPL”) as applicant. I will call it the July FAPL 2020 order. It contained an updated version of the mechanism which dynamically blocks websites in real time which was first used in 2017 ( FAPL v British Telecommunications plc [No 1] [2017] EWHC 480 (Ch)). In that judgment Arnold J explained that in his judgment this kind of “live” blocking approach was appropriate and, amongst other things, did not give rise to a significant risk of over-blocking. As he also explained in paragraph 9, the details of the mechanism would be kept confidential because to make them public would facilitate infringement and circumvention of the order. In July 2020 I was satisfied that the updated version of the dynamic blocking mechanism was also appropriate and did not have a significant risk of over-blocking.
Matchroom have provided evidence in the form of two witness statements (see below) and a confidential expert report supporting their request that this updated dynamic website blocking mechanism, as granted in the July FAPL 2020 order, be granted in this application. Some of the detailed aspects of Matchroom's evidence are based on the evidence put before the court in support of the July FAPL 2020 order.
Although the applicants present the application as seeking an order extending and varying the 2019 Order, it is not. This is simply an application for a fresh web blocking order and I will treat it as such. The application is for an order based on the website blocking system provided for in the July FAPL 2020 order.
A small point arises on procedure. This application was made as a Part 23 application. I questioned this approach because it appeared that this was not really an extension or variation of a previous order, it was a request for a fresh order, and so it seemed to me that a fresh Part 8 Claim Form ought to have been issued. It has now been explained to me that this Part 23 application approach has been followed for a number of years with a number of different applicants. It has the advantage of keeping together the series of applications by the same applicant with a single action number as a reference, which has some administrative advantages for applicants and their legal teams. I can see that that is so and so I will not require a Part 8 Claim form to be filed.
Since the application was filed, an additional two boxing events have been scheduled. One event is between Oleksandr Usyk and Derek Chisora scheduled for 31 st October 2020, and the other event is between Alexander Povetkin and Dillian Whyte scheduled for 21 st November 2020.
Evidence
The applicants have provided two witness statements in support of their application as well as a confidential expert report.
The witness statement of Mr Stephen Dawson is Mr Dawson's third witness statement, the first given in relation to the 2018 Order and the second relating to the 2019 Order. Mr Dawson has been the Chief Executive Officer of the applicants' group of companies since January 1984.
Mr Dawson summarised the status of the current website blocking mechanism, implemented under the 2019 Order, as having “operated smoothly and as intended” [7/10]. His evidence also notes the “significant positive impact in reducing in UK consumers' access to infringing live streams of Matchroom Events [boxing events organised by the applicants]” [7/11].
Mr Dawson submits that the rationale for varying the order is to “allow a greater proportion of the available unauthorised streams of Matchroom Events to be blocked, and to do so quicker and more effectively” [7/17]. Mr Dawson also refers to the evolving nature of the infringement as “pirates develop increasingly sophisticated and intricate ways in which to circumvent blocking” [7/38] so couching the proposed variation as proportionate to the scale and means of infringement.
The second witness statement filed in support of the application is of Mr Robert Kiessling. Mr Kiessling holds the position of Head of Cloud Engineering within the Technology UK Operations department of the fourth respondent Sky UK Limited. Mr Kiessling has been employed by the fourth respondent, and its predecessor companies, for over 24 years.
Mr Kiessling states that “blocking has worked smoothly in practice” [9/6] and has operated so as not to result in the “blocking of access to any legitimate content” [9/10]. Mr Kiessling also provides evidence in the form of traffic maps which he submits suggest that the 2019 Order has made a “significant contribution to reducing unauthorised streams of Matchroom Content transmitted to customers using Sky's broadband network” [9/21]. Mr Kiessling submits that he is unaware of the fourth respondent having received any complaint that legitimate content has been blocked [9/30] thereby averting concerns as to over-blocking.
The order sought
The applicants submitted that it would be appropriate for the court to make the order sought on the basis of the reasons held by the court to justify the making of the orders in FAPL v British Telecommunications plc [No 1] and FAPL v British Telecommunications plc [No 2] [2017] EWHC 1877 (Ch).
Assessment as at 15 th October
When I examined this evidence on 14 th/15 th October without a hearing, it was done at speed and without the benefit of oral assistance. I was satisfied that it would be appropriate to make an order in the form sought for a limited period, so as to ensure the injunction is in place for the boxing event scheduled for 17 th October 2020. However it had not been not possible for me to go into this as fully as I would wish to and I was not satisfied that the order should be made to cover any events after the end of October and certainly not for two years. To decide that would require a more careful examination of the material than was possible at that stage.
Therefore I made a short term temporary order on 15 th October 2020. The order was made to expire on 30 th October 2020, i.e. the day before the event between Oleksandr Usyk and Derek Chisora. I directed that, assuming the applicants wanted to seek an order for a longer period, that would need to be dealt with at a later date either at a hearing or on the papers. That would allow the judge in question to review the relevant papers fully.
The 15 th October 2020 order sought was to be confidential because it was said to contain confidential material. I was prepared to make that order in that form but at the same time I decided that I would annex a...
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