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High Court of Ireland Decisions
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Cite as:  IEHC 274
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Judgment Title: EMI Records Ireland Ltd & Ors v UPC Communications Ireland Ltd & Ors
Neutral Citation:  IEHC 274
High Court Record Number: 2012 12381 P & 2012 225 COM
Date of Delivery: 12/06/2013
Court: High Court
Composition of Court:
Judgment by: McGovern J.
Status of Judgment: Approved
Neutral Citation  IEHC 274
THE HIGH COURT
[2012 12381 P]
[2012 No. 225 COM]
EMI RECORDS (IRELAND) LIMITED SONY MUSIC AND ENTERTAINMENT (IRELAND) LIMITED UNIVERSAL MUSIC IRELAND LIMITED
WARNER MUSIC IRELAND LIMITED
UPC COMMUNICATIONS IRELAND LIMITED VODAFONE IRELAND LIMITED IMAGINE TELECOMMUNICATIONS LIMITED DIGIWEB LIMITED HUTCHINSON 3G IRELAND LIMITED AND BY ORDER OF THE COURT TELEFONICA IRELAND LIMITED
JUDGMENT of Mr. Justice Brian J. McGovern delivered on the 12th day of June, 2013
1. This application comes before the court pursuant to s. 40(5A) of the Copyright and Related Rights Act 2000 (as amended), for an injunction requiring the defendants to block or otherwise disable access by their subscribers to the website known as ‘The Pirate Bay’, and related domain names, IP addresses and URLs listed in the Schedule to the plenary summons, together with such other domain names, IP addresses and URLs as may be reasonably notified as related to main names by the plaintiffs to the defendants from time to time.
2. The plaintiffs may loosely be described as recording companies who record and release music and video for sale. In these proceedings, they seek injunctions against the defendants who are internet service providers (ISPs) to prevent a breach of their copyright by third parties illegally downloading material over the internet. The issues arising in this application were considered extensively by Charleton J. in a judgment delivered on 11th October, 2010, in EMI Record (Ireland) Limited and Others v. UPC Communications Ireland Limited  IEHC 377. The facts in issue in that case were identical to the matter before me. Having considered the matter in great detail, Charleton J. concluded that the legislative basis which would enable him to grant a blocking injunction did not exist in Irish law as it exists in many European jurisdictions. Notwithstanding his having concluded that a blocking injunction in the manner sought was not available in Irish Law, he went on to state at para. 1.34:-
(b) In considering an application for an injunction under this subsection, the Court shall have due regard to the rights of any person likely to be affected by virtue of the grant of any such injunction and the Court shall give such direction (including, where appropriate a direction requiring a person to be notified of the application) as the Court considers appropriate in all of the circumstances”.
(b) In considering an application for an injunction under this subsection, the Court shall have due regard to the rights of any person likely to be affected by virtue of the grant of any such injunction and the Court shall give such directions (including where appropriate, a direction requiring a person to be notified of the application) as the Court considers appropriate in all of the circumstances”.
6. A number of issues arise for consideration. The first issue is the appropriateness of making the order. Having heard the parties, no one argued that it would inappropriate to make an order blocking The Pirate Bay website having regard to the current state of legislation and the existing jurisprudence of Ireland, the UK and the European Court.
7. The second issue is whether fresh applications will have to be made to the Court if The Pirate Bay website changes its location on the internet. While counsel for the plaintiffs indicated that there was some difference between the defendants on this issue, a common position emerged in the course of the hearing, namely, that the parties would abide by whatever order the court made in that regard. The draft order and protocol is cast in terms that would not require fresh applications to be made to the court if The Pirate Bay website changes its location on the Internet. In the second of two judgments handed down by Arnold J. in 20th Century Fox Film Corporation v. British Telecoms Plc  Bus LR 1461 at p. 1528, para. 12, the learned judge stated:-
9. The final issue relates to the costs of the proceedings. In these proceedings, the plaintiffs claim that they are suffering substantial losses on an ongoing basis as a result of online copyright infringement. In the EMI and UPC case before Charleton J., these were estimated at approximately €20m per annum. The plaintiffs claim that the extent and ongoing nature of the losses requires that a blocking injunction be made urgently.
10. I am fortunate that the factual background to this case and the legal principles which are applicable have been so fully set out in the judgment of Charleton J. delivered on 11th October, 2010, in EMI Records (Ireland) Ltd. & Ors. v. UPC Communications Ireland Ltd.  IEHC 377.
11. I am entirely in agreement with that judgment. Allowing for the fact that he would clearly have given the blocking injunction in that case but for the lacuna in the law, which has now been rectified, his judgment effectively reflects the current jurisprudence in England and Wales as expressed in 20th Century Fox Film Corporation & Ors. v. British Telecommunications plc. and Dramatico Entertainment Ltd. & Ors. v. British Sky Broadcasting Ltd. & Ors.  EWHC 268 (Ch) and Dramatico Entertainment Ltd. & Ors. v. British Sky Broadcasting Ltd. & Ors. (No .2)  EWHC 1152 (Ch) and EMI Records Ltd. & Ors. v. British Sky Broadcasting Ltd. & Ors.  EWHC 379 (Ch).
12. I am quite satisfied on the facts outlined in the affidavits presented to the court that the plaintiffs are entitled to a blocking injunction in accordance with the terms of the draft order and protocol submitted to the court.
13. I am also satisfied that there is nothing in the legislation which would prevent the court directing that the defendants bear their own costs involved in implementing the necessary blocking mechanisms pursuant to the court order. Indeed, the defendants have all conceded that this should be so. I therefore direct that the costs associated with implementing the order should be borne by each of the defendants.
14. The only contentious issue in this case is who should bear the costs of the application to the court. The plaintiffs claim that there should be no order as to costs on the basis that this application is necessary and was made pursuant to a statutory regime which enables the plaintiffs to bring injunctive proceedings against the defendants even though they are mere conduits for the illegal downloading of copyright material. The plaintiffs say that, formerly, the defendants would have been liable in respect of any breach of copyright arising but that they now are given immunity from liability under the current statutory regime where, as a quid pro quo, they should bear their own costs of implementation of the order and of the legal proceedings. The plaintiffs say that such costs would be part of the costs of doing business and the costs of complying with the statutory regime, under which the defendants obtain enormous advantage in having an immunity from liability.
54. Thereafter, however, BT did not consent to the order or even adopt a neutral stance on the application. On the contrary, BT’s stance was one of all-out opposition. To that end, it served evidence in opposition, instructed two leading counsel and resisted the application on eight different grounds. Each of those grounds failed. In my view, the costs of the application from 17th December 2010 to 28th July 2011 should be borne by BT.
55. As far as the costs of the applications since 28th July 2011, to some extent these have involved points of detail on the order which it would have been reasonable for BT to raise even if it had adopted a neutral stance on the principle of an order being made. Furthermore, each side has had some measure of success, accordingly I will order each side to bear its own costs since 28th July 2011.”
17. The issues arising in this application do not constitute a novel issue of law in this jurisdiction. The issues arising in this case were substantially covered by the ex tempore judgment given by Charleton J. in EMI Records (Ireland) Ltd. & Ors. v. Eircom plc.  IEHC 411, in an ex parte application for a blocking injunction and in EMI Records (Ireland) Ltd. & Ors. v. Eircom Ltd.  4 IR 349, and EMI Records (Ireland) Ltd. & Ors. v. UPC Communications Ireland Ltd.  IEHC 377, to which I have already referred earlier in this judgment. It is true that the lacuna in the law referred to by Charleton J. in the latter case has now been filled, but all the factual and legal issues arising in that decision were essentially the same and no new ground has been covered here other than the filling of that legislative gap. In EMI Records (Ireland) Ltd. & Ors. v. UPC Communications Ireland Ltd & Ors.  IEHC 204, Kelly J., in a judgment delivered on 3rd May, 2013, stated at para. 70:
19. In particular, counsel for the second named defendant argued that his client was in an even stronger position than a party against whom an order of the type outlined in Norwich Pharmacal Co. v. Customs & Excise Commissioners  AC 133 was made. Counsel argued that this was not (as in Norwich Pharmacal) a mere application for a list of names or addresses or even a few documents, but was, in effect, an order directing the defendants to take some complicated and reasonably costly technical steps in order to block notified websites and also to put in place an administrative system for handling notifications and ensuring that such a system remained in place. Counsel said that in the particular circumstances of this case it was in a stronger position than a defendant in a Norwich Pharmacal case who would be entitled to an order for costs against the applicant. He drew attention to the distinction drawn by Arnold J. between Article 8(3) and the Norwich Pharmacal jurisdiction in the 20th Century Fox Film Corporation case, where the learned Judge held at para. 30, p. 1533:
21. None of the defendants are wrongdoers in this case. But if that be so, they are the conduit through which the wrongful activity conducted by The Pirate Bay has been effected. There is no doubt but that this activity has caused (and continues to cause) substantial financial damage to the plaintiffs. It seems to me that each of the defendants has adopted a neutral stance to the application, save for some legitimate dialogue taking place between them and the plaintiffs prior to the court hearing with a view to reducing the areas of dispute between the parties and putting the draft order and protocol in a form which would be broadly acceptable to all the parties. In short, it seems that in this case, “. . . each side has had some measure of success” as stated by Arnold J. in the 20th Century Film Corporation case. In the case of the second named defendant, there is a slight distinction to be drawn. In the first place, the correspondence from the plaintiffs’ solicitors indicates that the plaintiffs agreed to pay the reasonable costs of the second defendant on the basis that it did not actively participate in the proceedings. Thereafter, discussions took place between the plaintiffs and the second defendant on the terms of the protocol to be attached to the draft order submitted in this case and in particular the striking of a balance to on the issue of possible over-blocking. I accept that the second defendant had a significant input into the drafting of the protocol attached to the draft order and that these matters were resolved through correspondence and discussions up to 4th February, 2013. At that stage, all significant issues between the plaintiffs and the second defendant had been resolved other than the issue of costs.
22. In the case of the second defendant, it seems reasonable to award it costs against the plaintiffs up to and including 4th February, 2013. Thereafter, the second defendant should bear its own costs. I will therefore grant an order in those terms.