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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Murphy v Media Protection Services Ltd  EWHC 466 (Admin) (24 February 2012)
Cite as:  EWHC 466 (Admin)
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ON APPEAL BY WAY OF CASE STATED
FROM PORTSMOUTH CROWN COURT
B e f o r e :
THE HONOURABLE MR JUSTICE BARLING
|- v -
|MEDIA PROTECTION SERVICES LTD
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
JAMES MELLOR QC (Instructed by Russell-Cooke) appeared on behalf of the Respondent
Crown Copyright ©
MR JUSTICE STANLEY BURNTON:
"Dishonestly received a programme included in a broadcasting service provided from a place in the United Kingdom with intent to avoid payment of any charge applicable to the reception of the programme."
"Does the requisite 'intent to avoid any charge applicable to the reception of the programme' within Section 297(1) apply to circumstances where the appellant paid a charge to AV Station, an entity selling NOVA decoders and cards in the United Kingdom, and then receives a programme from NOVA, a foreign broadcaster, but does not pay any other fee to any broadcaster -- in this case BSkyB -- as the domestic broadcaster in question?"
"It was ultimately common ground between the parties that for the purposes of this appeal the court should proceed on the basis that the decoder card used by the appellant to receive the NOVA broadcast in question was not a pirate card in the sense of being a card which was manufactured and marketed without the authorisation of the NOVA card issuer. In other words, this was a genuine NOVA card, albeit that it was, according to the respondent, being used outside the area for which it was authorised, that is outside Greece. It seems to us that it is implicit in the case stated ..."
"Moreover, it does not appear that any contrary suggestion was made by the prosection either below or during the hearing of the first part of this appeal."
"1. Illicit device within the meaning of Article 2E of Directive 98/84/EC of the European Parliament, and of the Council of 20 November 1998 on the legal protection of services based on or consisting of conditional access must be interpreted as not covering foreign decoding devices, devices which give access to the satellite broadcasting services of a broadcaster, or manufactured and marketed with that broadcaster's authorisation, but are used in disregard of its will outside the geographical area for which they have been issued.
"2. Foreign decoding devices procured or enabled by the provision of a false name and address, or foreign decoding devices which have been used in breach of a contractual limitation permitting their use only for private purposes.
"3. On a proper construction of Article 56 TFEU, that article precludes legislation of a member state which makes it unlawful to import into and sell and use in that state foreign decoding devices which give access to an encrypted satellite broadcasting service from another member state that includes subject matter protected by the legislation of that first state. This conclusion is affected neither by the fact that the foreign decoding device has been procured or enabled by the giving of a false identity and a false address with the intention of circumventing the territorial restriction in question, nor by the fact that it is used for commercial purposes although it was restricted to private use.
"4. The clauses of an exclusive licence agreement concluded between a holder of intellectual property rights and a broadcaster constitute a restriction on competition prohibited by Article 101 of the Treaty where they oblige the broadcaster not to supply decoding devices enabling access to that right holder's protected subject matter with a view to their use outside the territory covered by that license agreement."
1. The appellant's NOVA viewing cards were not illicit devices within the meaning of article 2E of Directive 98/84/EC. Had they been such devices, they would have fallen within the scope of that Directive and different considerations would come into play.
2. By virtue of Article 56 of the Treaty, which is directly effective as a matter of EU law, Section 297(1), under which the appellant was convicted, cannot be applied to the appellant's use of the cards in question.
3. The territorial restrictions imposed on the use of the appellant's NOVA viewing cards were unlawful under EU law.