On 2 December 2013, Mr Justice Kelly of the Commercial Court
ordered the major Irish Internet service providers (ISPs) to block
subscriber access to the KAT website otherwise known as Kickass
Torrents. The decision comes only a number of months after Mr
Justice McGovern granted the first website blocking order in
Ireland in June 2013 in respect of The Pirate Bay. Matheson acted
for UPC and Hutchison 3G in both proceedings.
Evidence was presented to the Commercial Court concerning the
infringing nature of the KAT website and that infringements were
being undertaken by subscribers of the five ISPs subject to the
proceedings. The application was brought under the relatively new
Section 40(5A) of the Copyright and Related Rights Act 2000, which
was introduced into Irish law by a statutory instrument in 2012.
This legislative provision provides that injunctions, as envisaged
under Article 8(3) of the EU copyright in the information society
directive, are available to rights-holders against intermediaries
such as ISPs in order to bring copyright infringements to an
end.
Mr Justice Kelly was satisfied with the evidence presented to the
Court. None of the ISPs opposed the application. The Court was
satisfied that it has jurisdiction to grant the relief sought and
that it was appropriate to do so. The block will be implemented in
the coming weeks.
It is likely that there will be future applications to block
websites in this jurisdiction, particularly as the precedent and
process is now set, and the recent experience in the UK has shown
that such cases are expanding beyond music to film and sports
broadcasting. The decision in Ireland also coincides with the
recent opinion of the Advocate General in Case C-314/12 UPC
Telekabel v Constantin Film. In that opinion delivered on 26
November 2013, the Advocate General stated that the blocking of
websites which infringe copyright would be lawful as long as it
involves specified measures to block a particular website even if
there is a cost involved to the ISP and circumvention is possible
by subscribers with relative ease. The Court of Justice is not
bound by the opinion but may well follow its reasoning in due
course.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
