‘Whack-a-mole’ Dynamic Website Blocking Order

The Background

Sports events are a lucrative business, with the associated intellectual property rights highly guarded by the organisations authorised to broadcast them. However, the allure of easy money has tempted some to exploit sports broadcasts unlawfully. This resulted in the sentencing of five men in May 2023 who had been illegally streaming Premier League football matches to tens of thousands of people from 2016 to 2021. Their illicit operation gained them more than £7m from 50,000 subscribers.

In a recent development in website blocking orders (July 2023), Sky (Sky UK Ltd v British Telecommunications Plc & Ors[1]) sought a website blocking injunction against the largest UK Internet Service Providers (ISPs) under Section 97A of the Copyright, Designs and Patents Act 1988. This dynamic blocking order required ISPs to block certain websites that are streaming Sky’s copyrighted content, most significantly, at times and for periods of Sky’s choosing.

The Decision

The blocking order sought is a step-up from previous orders in that it is to be applied, subject to giving notice to the ISPs, at times and for periods determined by Sky. Previously, website blocking orders had a degree of dynamic character as they often specified periods to coincide with live coverage of sports events and/or they allowed the rights holder to update the list of targeted websites to avoid circumvention of the order. In this case, the rights holder is permitted to decide when and where to invoke the order to require that ISPs block access to certain websites.

Interesting Points – Confidentiality and Circumvention

Due to concerns over confidentiality and the risk that making public the details of the order would allow them to become more easily circumvented, no details of the infringements have been divulged in the judgment by Mr Justice Meade.

Considerations

The court was concerned to understand the implications of the dynamic blocking on the proportionality assessment it had to carry out. The court thought that, ordinarily, the material to be blocked might be considered relatively banal. It was, however, persuaded that, overall and in light of the investment that Sky had made in relation to premium content, it was proportionate.

It was also noteworthy that no non-infringing content was discernible on the targeted websites (even if some of the infringements were to third party content and not Sky’s).

The order Sky sought was for a period of a year, but the judge had concerns about the effect of the order upon ISPs and considered that these sorts of orders must always be under the court’s supervision. As such, the order was made in the first instance for four months (expiring in November), albeit that the judge recognised that, more likely than not, the order would be renewed in the same form after that. It remains to be seen what position the court takes after the four-month period has elapsed.

Impact

It is evident  that ISPs are thoroughly familiar with these sorts of orders now and do not appear to be expressing any concerns about their potentially extended scope. The courts remain cautious and, in light of the limited information that is made public about such website blocking orders, that is to be welcomed.

One thing that is not entirely clear from the judgment is the extent to which the dynamic nature of the blocking order was so useful to Sky. In other words, why a permanent block on a particular website was considered to be less optimal than a more temporally limited block applied at a certain moment? It can only be assumed that, in the eternal game of ‘whack-a-mole’ that is being played with online infringements, there may be some benefit to hitting a load of moles at the moment when they are poking their heads above ground and least able to find new burrows.

[1] Sky UK Ltd v British Telecommunications Plc & Ors [2023] EWHC 2252 (Ch).

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Category: Latest Insights | Author: Daniel Byrne | Published: October 2023 | Read more