Website blocking effective without over blocking: EUFA v British Telecommunications

Site blocking is an important tool to reduce online copyright piracy. As I argued in a recent blog post, Website blocking proposal good policy, there are persuasive reasons why these orders should also be available in Canada.

Some opponents of effective protection for the creative industries, broadcasters and distributors oppose site blocking, questioning whether it is effective and suggesting it is a disproportionate remedy, despite the studies and decisions around the world that show otherwise.

In a recent U.K. decision, Union Des Associations Européennes De Football v British Telecommunications Plc & Ors [2017] EWHC 3414 (Ch) (21 December 2017) Justice Arnold made an injunction order on behalf of UEFA, the governing body for association football in Europe, requiring the ISP defendants to block, or at least impede, access by their customers to streaming servers which deliver infringing live streams of UEFA competition matches to UK consumers.

The order which UEFA obtained was very similar to the orders made in Football Association Premier League Ltd v British Telecommunications plc [2017] EWHC 1877 (Ch), (“FAPL v BT II“) following the earlier order in Football Association Premier League Ltd v British Telecommunications plc [2017] EWHC 480 (Ch), [2017] ECC 17 (“FAPL v BT I“).

In giving reasons for decision, Justice Arnold found the proposed order to be appropriate and proportionate.

Dealing first with the need for the order to combat piracy he said:

First, the need for such orders has been emphasised by further evidence which has become available since then as to the scale of the problem of illicit streaming. By way of example, in a report entitled Cracking Down on Digital Piracy published by the Federation Against Copyright Theft in September 2017, the UK Intellectual Property Office was quoted as saying that it believed that, at a conservative estimate, a million set-top boxes with software added to them to facilitate illegal streaming had been sold in the UK in the last couple of years.

He then found that such orders have been effective and have achieved this without over blocking.

Secondly, as noted in FAPL v BT II at [5], the evidence filed by FAPL in that case demonstrated that the order made in FAPL v BT I was very effective in achieving the blocking of access to the Target Servers during Premier League matches and that no evidence had been found of overblocking. The evidence filed in support of the present application is that the order made in FAPL v BT II has also been very effective and there is still no evidence of overblocking.

For another recent blog post in favour of web site blocking, see Hugh Stephens Disabling Access to Infringing Offshore Websites (Site Blocking) and Free Speech on the Internet: There is no Contradiction.

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