From the bench: When a football stream infringes transmission rights

It’s Sunday, it’s been a long, long week and all we’re looking forward to is really nothing but the football game.

Whether your team is about to win the league, fighting for a top four finish or struggling with relagation, all we’re looking forward to is really nothing but the football game, because, as one wise manager once said: “Football is the most important of the less important things in the world.”

For some, the whistle won’t blow in the coming days though.

In its judgment of April 13, the First Hall of the Civil Court presided by Mr Justice Ian Spiteri Bailey delivered a decree in the case between ‘Dr Jacqueline Mallia, acting for and on behalf of Infront Sports & Media AG, vs Epic Communications Limited, Melita Limited and GO plc’.

The applicant proposed an application in terms of article 8 of the ‘Enforcement of Intellectual Property Rights (Regulation) Act’.

Essentially, this article allows any person who is the holder of, or is authorised to use, an intellectual property right, in particular, any person who is a licensee of such right, to request the court to issue, against an alleged infringer of such right, a decree intended to prevent any imminent infringement, or to forbid, on a provisional basis the continuation of the alleged infringement of that right. This injunction may also be issued, under the same conditions, against an intermediary whose services are being used by a third party to infringe an intellectual property right.

The applicant submitted that it holds the international audiovisual rights of the matches of the Italian Serie A for the seasons 2021/2022, 2022/2023 and 2023/2024; it, therefore, enjoyed the exclusive right to transmit, communicate and make available to the public the said audiovisual content in the territory of Malta.

Football is the most important of the less important things in the world. For some, the whistle won’t blow in the coming days though

From an exercise carried out by PriceWaterhouseCoopers in Malta, it transpired that there existed a number of IP addresses giving online access to the aforestated audiovisual content; this was being illegally streamed without the due licence and/or authorisation of the applicant.

Such illegal streaming could be accessed in Malta through websites, mobile device apps or other software accessed, included or listed in set-top boxes, media players, computers and/or other electronic devices, through the services provided by the respondent companies, which operate, among others, as internet service providers (ISPs) and were, therefore, responsible for the traffic on their platforms of digital content from various sources.

While acknowledging that respondent companies were not themselves infringing the applicant’s rights, the services provided by them could, and apparently were, nevertheless being used to commit such infringement as their clients could gain access to the illegally transmitted audiovisual content.

The applicant, therefore, sought to block the access to the streaming servers that were illegally transmitting the audiovisual content on which it held rights.

In determining the issue, the court placed particular emphasis on the fact that any delay in such a delicate sector as the digital sector can only cause irreparable harm to the right holder; it thus moved to accede to the request without hearing the respondent companies.

Unusual one might say. A gratuitous penalty kick in the 90th minute of a stalemate perhaps.

And yet, the court was well within the parameters of article 8 of the Enforcement of Intellectual Property Rights (Regulation) Act which contemplates that in appropriate cases, and particularly where it deems that any delay would cause irreparable harm to the right holder, the court is to (shall) apply the injunctive measures without first hearing the respondent.

The court ordered the respondent companies to ensure that their services are not being used to infringe the intellectual property rights of the applicant. It furthermore ordered the respondent companies to suspend access to the audiovisual content of the matches of the Italian Serie A, which were being illegally streamed, by blocking access to all IP addresses indicated by the applicant.

The court further ordered the immediate service upon the respondent companies of its decision and the records of the suit. The respondent companies now have the right to request the court to review its decision with a view to deciding, within a reasonable time after service, whether such measures should be modified, revoked or confirmed.

Keith A. Borg is a partner at Azzopardi, Borg and Associates Advocates.