November 16, 2020
Matchroom Boxing Ltd applied to the High Court for a website blocking injunction to prevent access to certain IP addresses which were being used to infringe their copyright relating to live streams of boxing matches.
On 20 September 2018 Mr Justice Arnold (as he was then) granted Matchroom an injunction pursuant to section 97A of the Copyright, Designs and Patents Act 1988. That order was extended and varied on 22 May 2019. The 2018 order (as varied) required the Internet Service Provider respondents to take reasonable steps to disable access to IP addresses which made the live streams available. The order contained a “sunset clause” whereby it ceased to have effect on 1 October 2020.
The application was issued on 28 September 2020 in relation to a boxing event between Lewis Ritson and Miguel Vazquez scheduled for 17 October 2020. It sought an extension and variation of the 2018 order ahead of that date to run for a further two-year term to expire on 1 October 2022.
After the application was filed, an additional two boxing events were scheduled for 31 October 2020 and 21 November 2020 respectively. The applicants submitted that it would be appropriate for the court to make the order sought on the basis of the reasons set out in (FAPL v British Telecommunications plc [No 1]  EWHC 480 (Ch) and in FAPL v British Telecommunications plc [No 2]  EWHC 1877 (Ch).
Mr Justice Birss first examined the evidence on the papers, as the matter was urgent.
Birss J noted that the terms of the order sought contained an updated version of the mechanism that dynamically blocks websites in real time that was first used in FAPL 1. In that judgment Arnold J had explained that this kind of “live” blocking approach was appropriate and did not give rise to a significant risk of over-blocking. The details of the mechanism would be kept confidential because to make them public would facilitate infringement and circumvention of the order.
Birss J found that although Matchroom presented the application as seeking an order extending and varying the 2018 order, it was in fact an application for a fresh web blocking order. Birss J was satisfied that it was appropriate to make the order for a limited period (until 30 October 2020). However, he was not satisfied that the order should be made to cover any events after the end of October and certainly not for two years. To decide that required a more careful examination of the material than had been possible at that stage, he said. He agreed to make the order confidential because it contained confidential material, but he also said that a copy of the order (with whatever properly confidential parts removed if necessary) should be annexed to the judgment.
Accordingly, a further hearing was held on 23 October 2020 to deal with which parts of the order should be confidential, and the making of the order for a period of two years. At the hearing, Birss J was satisfied that the order should be for a period of two years.
On the issue of confidentiality, Birss J agreed with Matchroom that Schedule 2 (a list of target IP addresses) and Schedule 3 (the detection conditions and requirements that an IP address must satisfy in order for that IP addressed to be notified so that it would be blocked) should be kept confidential, as to do otherwise would undermine the purpose of the order by helping those seeking to circumvent the web blocking system to avoid it in various ways.
Birss J also said that some thought should be given to whether there was a way, properly managed, whereby third parties with a legitimate purpose could have access to the information on appropriate terms. Matchroom explained that not only had FAPL shared certain details of the dynamic web blocking arrangements on a confidential basis with Matchroom, but also with other applicants for these orders. Further, this practice had been in existence for some years, facilitated by court orders permitting the necessary variations to relevant confidentiality terms. In other words, the details were being shared with appropriate other organisations on suitable agreed terms.
Birss J was satisfied with this and noted that this public judgment would serve to inform other applicants for related web blocking orders that they might be able to take advantage of this approach, on suitable terms. Birss J said that the organisation to approach in the first instance was FAPL. If suitable terms cannot be agreed, then if need be the matter can be resolved by the court. (Matchroom Boxing Ltd v British Telecommunications plc  EWHC 2868 (Ch) — to read the judgment in full, click here).