The Football Association Premier League Ltd v Anthony William Luxton
| Jurisdiction | England & Wales |
| Judge | Lord Justice Floyd,Lord Justice Tomlinson |
| Judgment Date | 09 November 2016 |
| Neutral Citation | [2016] EWCA Civ 1097 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A3 2014 0759 |
| Date | 09 November 2016 |
[2016] EWCA Civ 1097
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
MRS JUSTICE ROSE DBE
[2014] EWHC 253 (Ch)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Tomlinson
and
Lord Justice Floyd
Case No: A3 2014 0759
Martin Howe QC (instructed by Molesworths Bright Clegg) for the Appellant
Helen Davies QC and Lindsay Lane (instructed by DLA Piper UK LLP) for the Respondent
Hearing date: 11 October 2016
On 30 January 2014 Mrs Justice Rose granted summary judgment to the claimant and respondent, The Football Association Premier League ("FAPL"), in its action for infringement of copyright against the defendant and appellant Mr Anthony Luxton. Mr Luxton is the licence holder and designated premises supervisor of a public house called the Rhyddings at Brynmill Avenue in Swansea. The copyright works relied on were the on-screen graphics and logos which FAPL add to the live feed of Premier League Football matches which it provides to its licensed broadcasters around the world ("the copyright works"). Mr Luxton relays these live broadcasts incorporating the copyright works for display on screens in his pub. FAPL contend that he does this without their consent because the satellite decoder card which he uses for this purpose is one which only entitles the user to display the broadcasts in a domestic as opposed to a public or commercial setting.
Mr Luxton raises a defence under EU law. He says that FAPL are motivated in bringing this action by a desire to enforce strict territoriality in the reception of broadcasts of its live football matches. He says, in addition, that his use of a domestic card at the Rhyddings was a consequence of unlawful agreements or concerted practices between FAPL and the broadcasters to restrict the supply of foreign commercial cards outside the territory in which that broadcaster operates. He says that, in these circumstances, he has a reasonably arguable defence to the copyright infringement action brought by FAPL, or at least such a case for the remedy to be limited.
The judge did not consider Mr Luxton to have any arguable defence. She granted an injunction to restrain infringement of copyright and an inquiry as to damages. She refused permission to appeal. On 11 February 2015 I granted permission to appeal, after an oral hearing, having initially refused it on the papers.
On the appeal Mr Martin Howe QC argued the case on behalf of Mr Luxton. The case for FAPL was argued by Ms Helen Davies QC with Ms Lindsay Lane.
The facts
FAPL grants licences to broadcasters in a number of different territories. One of its UK licensee is Sky. The broadcasts made by the licensee broadcasters are encrypted, and access to the broadcasts is enabled, on payment of a subscription, by the provision of decoder cards supplied by the broadcaster.
The satellite decoder card which Mr Luxton used at the Rhyddings was one sold by Viasat AS, a Danish broadcaster. Viasat was one of FAPL's licensed foreign broadcasters for the 2012/2013 football season. There is no dispute that the subscription incorporated in the card was for domestic use only. Accordingly the holder of the card could not use it in order to relay Viasat's broadcasts in commercial premises such as the Rhyddings.
Mr Luxton purchased his satellite decoder card in about November 2011 from UGC Limited. He exhibits to his witness statement an invoice from UGC Limited dated 12 December 2011 relating to a Viasat satellite viewing system card. The invoiced price was £1895 plus VAT.
The evidence before the judge included a statement of Mr Milan Ibrahim, the sole director of UGC Limited. He stated that in early 2010 he established a business relationship with an authorised reseller of Viasat packages, a Swedish satellite broadcaster. UGC purchased a number of domestic and commercial packages from this Viasat reseller which they sold on to domestic and commercial customers in fulfilment of orders. The relationship continued until around the end of September 2011. After that date, although he had overdue orders, the reseller was unable to obtain any further commercial cards. He repeatedly chased the supplier for more commercial packages. On each occasion his supplier told him he was still waiting for the commercial packages from Viasat, and that he in turn was chasing Viasat.
In about early November 2011 Mr Luxton had contacted UGC with an enquiry about purchasing a satellite television system for his pub that would show all of the Swansea City matches. Swansea City had recently been promoted to the Premier League. UGC advised Mr Luxton that the Viasat broadcasting service was most likely to broadcast all the matches that he required. Mr Luxton subsequently ordered a Viasat commercial system from UGC for use at the Rhyddings.
By the time UGC received Mr Luxton's order they had run out of Viasat commercial packages and were still awaiting overdue orders from their Viasat reseller. Accordingly, in order to fulfil Mr Luxton's order UGC installed a domestic Viasat card on 25 November 2011. They did so with the intention of exchanging it for a Viasat commercial package as soon as the outstanding order arrived. Mr Ibrahim says this was done without Mr Luxton's knowledge. Mr Luxton therefore thought at all times that he had purchased a commercial package.
On 3 December 2011 Viasat terminated all of the live domestic cards that UGC had purchased from their suppliers.
The evidence adduced on behalf of Mr Luxton also detailed steps taken by Mr Ibrahim and also by Mr Luxton's solicitor, Mr Dixon, to attempt to obtain foreign commercial decoder cards for use in the UK. None of the broadcasters approached were prepared to make such supplies.
The judge reviewed the material produced by Mr Dixon and concluded that it "certainly raised a prima facie case that the status quo is being maintained". This was a reference to the decision of the European Court of Justice in joined cases C-403/08 and C-429/ 08 Football Association Premier League Ltd and others v QC Leisure and others; Murphy v Media Protection Services Ltd 62008CJ0403"> [2012] 1 CMLR 29 (" QC Leisure"). At the time that case was decided it was clear that the rights granted by FAPL to its individual foreign broadcasters purported to be exclusive territorial rights. The court held that national legislation which prohibited the importation of foreign decoding devices was a restriction on the freedom to provide services provided by Article 56 of the Treaty on the Functioning of the European Union ("TFEU") unless it could be objectively justified (which it could not).
Ms Davies accepted before the judge and before us that this application should be approached on the assumption that there is an arguable case that foreign broadcasters are still behaving as if they are bound not to provide commercial cards outside their national territory. Likewise we should assume that the account of the purchase of the decoder card used by Mr Luxton given by him and Mr Ibrahim is true. To the extent that it matters, therefore, we should assume that Mr Luxton was not aware that the card with which he had been supplied was a domestic and not a commercial one. Ms Davies also accepts that, had Mr Luxton imported a commercial card instead of a domestic one, he would have had an arguable defence that it authorised him to communicate the copyright works to the public in the United Kingdom, notwithstanding that it was a foreign card. She makes it clear that her clients do not accept that the defence would be a good one.
The Treaty provisions relied on
Mr Luxton relies on two provisions of the TFEU, Articles 56 and 101. These provide, so far as material:
Article 56
Within the framework of the provisions set out below, restrictions on freedom to provide services within the Union shall be prohibited in respect of nationals of Member States who are established in a Member State other than that of the person for whom the services are intended…
Article 101
1. The following shall be prohibited as incompatible with the internal market: all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the internal market, and in particular those which:
(a) directly or indirectly fix purchase or selling prices or any other trading conditions;
(b) limit or control production, markets, technical development, or investment;
(c) share markets or sources of supply;
(d) apply dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage;
(e) make the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which by their nature or according to commercial usage, have no connection with the subject of such contracts.
2. Any agreements or decisions prohibited pursuant to this Article shall be automatically void…
The suggested defences
The suggested defence based on EU law is put in two ways. These have been referred to in argument as "nexus 1" and "nexus 2", and I will continue to do so.
In nexus 1 it is suggested that the present proceedings are in reality an illicit attempt on the part of FAPL to preclude the use by Mr Luxton of a foreign decoder card to receive broadcasts from a foreign broadcaster within the EU. In commencing and pursuing the proceedings, FAPL is acting pursuant to a mutual understanding between the FAPL and its UK exclusive licensee, Sky, to ensure that customers in the UK are prevented from receiving...
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