In a landmark ruling, court orders ISPs to block pirating websites
It will no longer be possible for millions of people to stream pirated sports and entertainment content via the internet following a landmark ruling by the High Court in Kenya.
This follows the High Court of Kenya’s decision to confirm a permanent injunction compelling internet service providers (ISPs) to block sports pirate websites infringing on copyrighted content.
In November 2019, entertainment company Multichoice Kenya filed a suit against Safaricom PLC and Jamii Telecom Limited seeking to compel the ISPs to block live sports streaming sites running on their networks.
The High Court had earlier issued a temporary order to the ISPs to block the said infringing content but the same was swiftly stayed by the Court of Appeal on application by Safaricom.
While delivering her verdict, Lady Justice Wilfrida Okwany noted that MultiChoice Kenya had lawfully issued valid takedown notices to the ISPs and they ought to have complied with the same.
She further found that the ISPs have not given any lawful excuse for their failure to comply with the takedown notices.
Subsequent to the ruling, Safaricom has requested and was granted 72 hours by the court to comply with the takedown order.
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The ISPs have long opposed the takedown provisions in the Copyright (Amendment) Act and had even sought to have the provisions wholly repealed from the Act 18 months after their coming into force.
Entertainment companies such as SuperSport usually make huge financial investments to acquire and hold the exclusive broadcast and transmission rights for competitions such as UEFA Super Cup, the Championship and Europa Leagues, English Premier League, and La Liga in Kenya and other sub-Saharan Africa countries.
As a result, the constant illegal broadcasting over the internet of their protected content continues to erode their revenues from paid-up subscriptions.
The resolution of the landmark case marks the first time that a Kenyan court has sanctioned takedown notices in terms of the Copyright Act as amended in 2019.
The amended Act states in section 35B (1) that, “A person whose rights have been infringed by content to which access is being offered by an Internet Service Provider may request by way of a takedown notice, that the ISP removes the infringing content.”
The Kenya Copyright Board (KECOBO) and the Communications Authority of Kenya (CA) were interested parties in the suit.
Representatives of civil-society copyright bodies, which work to fight content piracy and protect intellectual property have welcomed the court’s decision.
“This is a red-letter day in the fight against piracy in Africa,” said MultiChoice Kenya Managing Director Nancy Matimu. “We have been fighting for years to ensure that there are legal copyright protections and that those protections are enforced. The court has reaffirmed the stance of the law that copyright must be protected.”
According to Ms Matimu, the case would have enormous implications for the content industry right across the continent.
“The Kenyan courts have sent a message to the rest of the world that we respect the right of content creators to earn a living from their work,” she added.
If governments in the rest of Africa followed the Kenyan example, Ms Matimu noted, it would go a long way to strengthening the standing of Africa as a key investment destination in the world.
She is hopeful that African countries will follow suit, by introducing legislation to protect artists, musicians, broadcasters, and all content creators, to prevent their content from being pirated and used illegally.
“This is a landmark ruling. With this verdict, Kenya is saying that any business looking to invest in Kenya can rest assured that their intellectual property will be protected.”
