The High Court has granted a new order to block websites that were infringing copyright by streaming broadcasts of boxing matches in Matchroom Boxing Ltd and another v British Telecommunications plc and others [2020] EWHC 2868 (Ch).
The order follows a similar order granted in 2018. It contained an updated version of the mechanism which dynamically blocks websites in real time which was first used in 2017 (FAPL v British Telecommunications plc [No 1] [2017] EWHC 480 (Ch)). In that judgment Arnold J had explained that in his judgment such a “live” blocking approach was appropriate and, amongst other things, 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.
In July 2020 the judge in the Matchroom case was satisfied that the updated version of the dynamic blocking mechanism was also appropriate and did not have a significant risk of over-blocking.
Matchroom provided evidence in the form of two witness statements and a confidential expert report supporting their request that the updated dynamic website blocking mechanism, as granted in the July FAPL 2020 order, be granted in this application. Some of the detailed aspects of Matchroom’s evidence were based on the evidence put before the court in support of the July FAPL 2020 order.
The judge was generally satisfied that an order along the lines of the order sought was appropriate, although two matters had to be considered, both relating to confidentiality. The first was the confidentiality issue itself, the second was a point about legitimate access to that information.
The court was asked to keep certain schedules of the order confidential. This was because all of it was information which would, if publicly available, undermine the purpose of the order itself, because it would help those seeking to circumvent the web blocking system to avoid it in various ways. Schedule 2 to the order was a list of target IP addresses. It needed to be confidential because it would otherwise provide a list of addresses to use to try and get access to these infringing streams. Schedule 3 to the order set out the detection conditions and requirements which an IP address must satisfy for that IP addressed to be notified so that it will be blocked. The judge had previously thought that there might not be any risk caused by explaining the conditions and requirements at least in broad terms, but was satisfied that even doing that bore a tangible risk of undermining the blocking and assisting the infringers. Therefore, he was satisfied that the public version of the order should not contain any of the content of the relevant schedules.
On the second point, the judge raised the concern that while it was appropriate that the details remain confidential, some thought should be given to whether there was a way, properly managed, whereby third parties with a legitimate purpose ought to have access to this information on appropriate terms. Counsel explained that in fact a practice of a sort already exists, in that not only had Football Association Premier League (FAPL) shared certain details of the dynamic web blocking arrangements, on a confidential basis, with Matchroom but also with other applicants for these orders, and that this practice had been in existence for some years, facilitated by court orders permitting the necessary variations to relevant confidentiality terms. The dynamic web blocking arrangements had been devised by a team working for FAPL. Nevertheless, the details were being shared with appropriate other organisations on suitable agreed terms. The potential applicants such as FAPL and Matchroom and others, as well as the broadcasters themselves such as Sky, had a clear interest in maintaining the confidentiality of the arrangements for the same reasons as the judge had kept them confidential in this case.
Having had the practice explained, the judge accepted it made sense and appeared to work satisfactorily. Although the detailed terms of the order being made were kept confidential, other applicants for related web blocking orders can see that they may be able to take advantage of this approach, on suitable terms.
