July 29, 2019

The Guidance explains how satellite broadcasters restrict their broadcasts on a territorial and paid-for basis by encrypting their transmissions, meaning that to access a broadcast, consumers purchase or lease set-top boxes (decoder devices), which convert the encrypted transmissions to a watchable form.

Section 297 of the Copyright, Designs and Patents Act 1988 makes it a criminal offence to dishonestly use a decoder device intended for use in another country to access programmes that are otherwise available via a legitimate, UK broadcasting service. However, in Joined Cases C-403/08 Football Association Premier League Ltd v QC Leisure and C-429/08 Karen Murphy v Media Protection Services Ltd, the Court of Justice of the European Union ruled that s 297 should not apply where it prevented persons in the UK from using legitimate decoder devices intended for use elsewhere in the EU, even where they did so to avoid a charge for the relevant UK broadcasting service, because such a restriction was inconsistent with the “freedom of services” under the Treaty on the Functioning of the European Union.

The Guidance states that, on exit from the EU, the Government intends to disapply provisions on freedom of establishment and the free movement of services, meaning that the existing restriction to the criminal offence under s 297 CDPA will fall away. Therefore, from exit day, it will become an offence to use satellite broadcast decoder devices intended for EU audiences to access a programme included in a broadcast made from the UK with the intent of avoiding a charge associated with the programme. This is already the case for satellite decoder devices intended for non-EU audiences.

The Guidance explains that the change will not affect those who use EU decoder devices to access programmes included in UK broadcasts for purposes other than the avoidance of a charge. The change will not weaken or change in any way the illegality of illicit decoder devices for the acts specified by s 297 (e.g. cloned, counterfeit, or stolen decoder devices). To read the updated Guidance, click here.