Wondering how to draft an order for a website blocking injunction? Read the Matchroom Boxing Limited Case

The  High Court of Justice, Business and Property Courts of England and Wales,  has come out with another ruling concerning blocking injunctions, this time in the case of Matchroom Boxing Ltd and another v British Telecommunications plc and others [2020] EWHC 2868 (Ch) (here). The case involved  an  application made by Matchroom (a company that runs boxing events) regarding a website blocking injunction pursuant to section 97A of the Copyright, Designs and Patents Act 1988. The applicant had previously, on September 20, 2018, been granted such an injunction by  Justice Richard Arnold (as he was at the time) , but that order had  expired on the 1^st of October 2020, by virtue of a “sunset clause” contained in the order. The applicant accordingly submitted an application  to extend the term of the order. 

 

Justice Colin Briss treated the filing  as a new application for a website blocking injunction, ruling that an order along the lines of the application was appropriate. In connection with the new order, there was a discussion by the court on the matter of confidentiality.  It was deemed important to consider whether the order would be confidential ab initio. If so, then the question was, what was the scope of legitimate access to information by third parties in connection with the order.

Matchroom requested that certain parts of the order remain confidential. This was due to the fact that if all information on the scope and specifics of the order was made available to the public, that would undermine the purpose of the order, since it would help those seeking to circumvent the web blocking system to do so in  various ways. In particular, Schedule 2 of the order included a list of the target IP addresses, while Schedule 3 included the detection conditions and requirements that an IP address must fulfill in order to be notified that it is blocked.

The Court concluded that these parts of the order could be kept confidential. However, other applicants for related web blocking orders will still be able to have access to the order in its entirety  to be able to take advantage of the information (the scope, the IP addresses, and the ways it will be blocked) contained in the order.  

The practice of access to information   by third parties with a legitimate interest is not a new phenomenon. The Football Association Premier League, FAPL (following  the  FAPL v BT [2017] EWHC 480 Ch and [2018] EWHC 1828 (Ch)) case, had  shared details with Matchroom and other third parties. In fact, the dynamic web blocking arrangements were developed by a team working for FAPL at considerable cost and were now made available with other organizations and private parties on suitable agreed terms.

In the case at hand, Annex A to the ruling contains a copy of the order (except, of course, for the parts covered by confidentiality). Still, despite that some interesting aspects of the order are marked as confidential, the publicly available portions of the order provide useful information in connection with how actual web-blocking orders look like.

The first part sets out what is covered by the order:

a) The Applicants or their appointed agents may notify to the Respondents an IP address to be blocked as a Target Server pursuant to paragraph 1 of this Order if: (a) the Applicants or their appointed agents have detected that the IP address is being used: (i) during the Matchroom Event to communicate to the public live audio-visual footage of that Event ("Matchroom Event Footage") without authorisation; or (ii) within the Pre-Monitoring Period (as defined in Confidential Schedule 3 of this Order) immediately preceding the Matchroom Event to communicate to the public without authorisation live footage from:

(A) a subscription television channel on which Matchroom Event Footage is to be broadcast; or

(B) a sports-related subscription television channel operated by the same broadcaster as a channel within sup-paragraph (A) above

(together, "Channel Footage"); or

(iii) in a manner that meets one or more of the detection conditions specified in Confidential Schedule 3 of this Order; and

(b) the Applicants or their appointed agents have concluded that at the time of detection the IP address satisfies the requirements of in Confidential Schedule 3 of this Order.

Also worthy of  attention are the exceptions to the obligations of the Respondents under the order, namely:

I.  A Respondent will not be in breach of this Order if it temporarily ceases to take the steps ordered in paragraph 1 (either in whole or in part) upon forming the reasonable view that suspension is necessary:

(a) in order to: (i) correct or investigate over-blocking of material which is, or is reasonably suspected to be, caused by the steps taken pursuant to paragraph 1; (ii) ensure the reliable operation of its Internet Watch Foundation blocking system, if it reasonably considers that such operation is otherwise likely to be impaired; (iii) maintain the integrity of its internet service or the functioning of its blocking system; (iv) upgrade, troubleshoot or maintain its blocking system; or (v) avert or respond to an imminent security threat to its networks or systems;

(b) and provided that: (i) it notifies the Applicants or their appointed agent of such suspension and the reasons for the same as soon as reasonably practicable; and (ii) such suspension lasts no longer than is reasonably necessary.

A further point to be noted  is which parties, in addition to the Respondents,  are permitted  to apply for exception to the order,  as follows:

Permission to apply

i)  The following persons have permission to apply on notice to vary or discharge this Order insofar as it affects them, namely:

(a) The operator of any Target Server having an IP address notified under paragraph 2 of this Order;

(b) The operator of any website or video streaming service who claims to be adversely affected by this Order;

(c) Any recipient of a notice under paragraph 11 of this Order; and

(d) Any customer of the Respondents who claims to be adversely affected by this Order.

ii)  Any application under paragraph 16 of this Order shall be on notice to all the parties and be supported by evidence justifying the grounds for the application, including a clear indication of the status of the applicant.

Comment

The Matchroom case follows a number of website blocking injunctions, pursuant to the  reasoning in the FAPL decision (see IPKat posts, here, here and here). The current case is of particular interest because it provides  an  opportunity to actually see how such  an order in structured and what issues  are covered by it.

 In an attempt to keep these orders balanced (between the rights and interests of the right holders and the rights of third parties to continue with their business activities) and to avoid abuse, the possibility to apply for an exception is an important aspect to be considered.  Notably, such permission  is not limited to the Respondents, but it also enables third parties directly or indirectly affected by the order to request an exception. With  technological means evolving, and pirates finding new ways of circumventing a blocking order,  one can expect website blocking injunctions to evolve as well.