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FAPL v QC Leisure/Murphy v Media Protection Services Joined Cases C-403/08 & C-429/08

Case Summary  |  Judgment  |   4 October 2011


In this landmark case on cross border broadcasting which was decided by the ECJ Grand Chamber, James Mellor QC and Charlotte May acted for the claimants in the civil case and for the prosecutor MPS in the criminal case. Martin Howe QC acted for the defendants in the civil case and for Mrs Murphy in the criminal case. The ECJ held that:

  1. The Conditional Access Directive 98/84/EC is to be interpreted so that a satellite decoder card which is issued by a satellite broadcaster does not become an "illicit device" because it is moved across national borders and used in another country contrary to the wishes of the broadcasting organisation or the people who supply content to it;
  2. National legislation which prohibits the import, sale or use of foreign decoder cards is contrary to the freedom to provide services and cannot be justified either in light of the objective of protecting intellectual property rights or by the objective of encouraging the public to attend football stadiums.
  3. A system of exclusive licences is contrary to European Union competition law if the licence agreements prohibit the supply of decoder cards to television viewers who wish to watch the broadcasts outside the Member State for which the licence is granted.
  4. The showing in a public house of a broadcast containing works protected by copyright amounted to a "communcation to the public" of those works within the scope of Article 3(1) of Directive 2001/29.

The Questions were referred to the ECJ by Kitchin J at [2008] EWHC 1411 (Ch). Subsequent to the ECJ's judgment, the civil case was disposed of by Kitchin LJ at [2012] EWHC 108 (Ch) and by the Court of Appeal at [2012] EWCA Civ 1708, and the appeal was allowed in the criminal case against Mrs Murphy by the Adminstrative Court at [2012] EWHC 466 (Admin).

Reported at [2012] FSR 1