High Court kicks out football appeal

Stephan Weber of Sykes Anderson LLP summarises the case Karen Murphy v Media Protection Services Limited (21 December 2007)

In a recent case, the High Court has dismissed an appeal by a publican against her conviction for showing Greek satellite broadcasts of live Premier League football matches in her pub.  While the Greek television channel had a license to screen such matches in Greece, at the time British Sky Broadcasting Limited (“BSkyB”) held the exclusive broadcasting rights for the UK. 

The law

A broadcast is protected as a copyright work under the Copyright, Designs and Patents Act 1988 (“the Act”).

Under the Act, it is an offence to dishonestly receive a broadcast provided from a place in the UK with intent to avoid payment of the charge otherwise payable.

The history of the case

On becoming the landlady of a public house in Southsea, Hampshire, Ms Murphy cancelled its £6,000 a year subscription with BSkyB and subscribed to Nova, a Greek television channel which screens Premier League matches in Greece for merely £800 a year.

The matches were filmed in the UK by BSkyB and transmitted live to its subscribers and also sent to other EU licensees of the Premier League – such as Nova - by satellite link.  Nova added an optional Greek commentary to the feed and the program was then uplinked to the Nova satellite service.

Following a private prosecution against Ms Murphy brought by the Premier League she was convicted of two offences for breach of the Copyright, Designs and Patents Act 1988.  Her appeal was rejected by the Crown Court and she then appealed to the High Court.   

The decision of the High Court

In the High Court, Ms Murphy argued that the Nova transmission she received was not made from a place in the UK and was separate and distinct from the program transmitted by BSkyB.  Therefore, the Act would not apply.

The High Court took a pragmatic view on the matter and decided that the football matches constituted a broadcast provided from the UK.  Moreover, the identity of the program was not changed by adding a commentary and Nova’s logo to it. 

The fact that Ms Murphy paid a charge to Nova for receiving the broadcast was not a defence as she knew that Nova did not have the right to screen the matches in the UK.  Accordingly, she had the necessary intent to avoid BSkyB’s usual subscription charge.

Consequently, Ms Murphy’s appeal was dismissed, subject to the High Court hearing further argument on possible EU competition law issues regarding the free movement of services.

Comment

While it is unlikely that the High Court will come to a different decision once it has considered EU competition law, this case could mark the beginning of increased lobbying activity to open up the broadcasting market in Europe.  This could have dramatic effects on the whole industry.  Whether positive or negative, will depend on which side you are on.

Please note that this area of the law is a complex subject and you should not take or refrain from taking any step without full legal advice on your particular circumstances.  No liability is accepted in connection with this case summary or if any reliance is placed on it.