Injunctions against ISPs Part IV: Dramatico Entertainment Ltd and Others v British Sky Broadcasting Ltd. and Others (No. 2)

In Dramatico Entertainment Ltd and Others v British Sky Broadcasting Ltd and Others [2012] EWHC 268 (Ch) (20 Feb 2012) Mr. Justice Arnold concluded that both users and the operators of the Pirate Bay website infringed the copyrights of the claimants (and those they represent) in the UK. That had been the trial of preliminary issues that Mr. Justice Henderson had ordered in respect of applications by various businesses in the music industry for injunctions requiring the defendant internet service providers to block access to The Pirate Bay under s.97A of the Copyright Designs and Patents Act 1988.   I wrote about the case in "Injunctions against ISPs Part III: Dramatico Entertainment Ltd and Others v British Sky Broadcasting Ltd. and Others" (21 Feb 2012). In Dramatico Entertainment Ltd and Others v British Sky Broadcasting Ltd and Others (No. 2) [2012] EWHC 1152 (Ch) (02 May 2012) the judge granted the blocking order.

Analysing s.97A the judge directed himself that he had to be satisfied that:

1. the persons against whom the injunctions are to be awarded are "service providers" within the meaning of s.97A (3) of the Copyright, Designs and Patents Act 1988;
2. their services are used by their customers to infringe copyright; and
3. the service providers had actual knowledge of such infringement.

It was common ground that the first and second conditions were satisfied.   As to the second, there was expert evidence that "out of 3,299,337 instances where an IP address for a device connected to the internet and making available sound recordings from a list of 15,000 titles using an internet service provided by one of the Defendants had been identified, 970,529 instances related to Virgin, 386,268 to TalkTalk, 596,872 to Sky, 439,181 to Everything Everywhere and 6,363 to O2."

In my case note I observed that  nobody seems to have mentioned  Case C-70/10 Scarlet Extended SA v Société belge des auteurs compositeurs et éditeurs (SABAM). [2011] ECR I-0000 or Case C-360/10 Société belge des auteurs compositeurs et éditeurs (SABAM) v Netlog NV on 16 Feb 2eir 012 [2012] ECR I-0000. Mr. Justice Arnold considered those cases in two contexts,   First, he said at paragraph [8]:

"For completeness, I would add the following. One of the arguments advanced by BT in 20C Fox v BT was that the order sought by the applicants in that case would be contrary to Article 10 of the European Convention on Human Rights. I did not accept that argument for the reasons I gave at [163]-[177]. In so holding, I distinguished the reasoning of Advocate General Villalón in his Opinion dated 14 April 2011 in Case C-70/10 Scarlet Extended SA v Société belge des auteurs compositeurs et éditeurs (SABAM). Since then, the Court of Justice of the European Union has delivered its judgment in that case on 24 November 2011 [2011] ECR I-0000 and its judgment in Case C-360/10 Société belge des auteurs compositeurs et éditeurs (SABAM) v Netlog NV on 16 February 2012 [2012] ECR I-0000. I have considered those judgments with care, but I do not believe they call into question any of my reasoning in 20C Fox v BT. In particular, I have considered whether it makes any difference if, instead of asking whether the order would be contrary to Article 10 ECHR, it is asked whether the order would be contrary to Article 11 of the Charter of Fundamental Rights of the European Union ("the Charter"), as suggested by those judgments. I do not believe that that would make any difference." 

Secondly, he said at paragraph [10]:

"As I noted in Golden Eye (International) Ltd v Telefónica UK Ltd [2012] EWHC 723 (Ch) at [116], there are two reasons why it is necessary to consider the proportionality of orders in this field. The first is that Article 3 (2) of European Parliament and Council Directive 2004/48/EC of 29 April 2004 on the enforcement of intellectual property rights ("the Enforcement Directive") imposes a general obligation to consider the proportionality of remedies for the infringement of intellectual property rights: see Case C-324/09 L'Oréal SA v eBay International AG [2011] ECR I-0000 at [139]-[144]. The second is that the CJEU has held that, when adopting measures to protect copyright owners against online infringement, national courts must strike a fair balance between the protection of intellectual property rights guaranteed by Article 17 (2) of the Charter and the protection of the fundamental rights of individuals who are affected by such measures, and in particular the rights safeguarded by the applicable Articles of the Charter: see Case C-275/06 Productores de Música de España (Promusicae) v Telefónica de España SAU [2008] ECR I-271 at [61]-[68] and Scarlett v SABAM at [42]-[46], [50]-[53]." 

I have no doubt that the judge did carry out a fair balancing exercise in weighing up the rights of the copyright owners and those of the persons affected by the blocking injunction but he did not have the benefit of argument on behalf of those persons as he did in Twentieth Century Fox Film Corp v British Telecommunications plc (No 2) [2011] EWHC 2714 (Ch) and Golden Eye.  In the former case I made submissions on behalf of a BT subscriber.   In the latter case the judge heard submissions from Consumer Focus on behalf of alleged file sharers.

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