Sky, Premier League and FACT explain the full story behind football screening prosecutions

The panel​
Alison Dolan (AD), deputy MD Sky Business; Nick Noble (NN), head of communications for the Premier League; Byron Jacobson (BJ), general counsel at the Federation Against Copyright Theft Ltd (FACT)​

PMA​: What are the main messages you are each trying to get across to readers of the Publican's Morning Advertiser​ about the unauthorised screening of Premier League matches?

AD​: There are four messages that Sky would like to get across to licensees.

• The first and most important is that Sky takes illegal use of its programming very seriously. We invest billions on rights, production and commentators to make a great product which drives value to our licensees. It’s very important that those landlords that subscribe legitimately are not short changed by those who choose not to.
• Secondly, we want all licencees to be clear that the only legal way to screen Sky Sports programing in mainland UK is via a valid commercial agreement with Sky Business. Showing Sky Sports via any other source will infringe our copyright.
• Thirdly Sky does and will continue to pursue civil action against licensees who screen our products without a valid agreement. We also share information with the Premier League when we find pubs and suppliers using systems which infringe the Premier League’s copyright. This is both to protect our own business and to support our customers with valid commercial agreements.
• The last message is that Sky is a member of FACT, which brings criminal prosecutions against licensees who Sky investigators find showing our programming without a valid commercial agreement.

NN​: The big messages to convey are that we want to support publicans who legitimately subscribe to Sky and BT Sport with commercial subscriptions. We also want to support those who contact us to say ‘some pub down the road is using an unauthorised system. Can you help me because we’re trying to do this the right way?’.  

Our business model is based on selling broadcasting rights. We have to protect our intellectual property and copyright. You will know form the cases that you’ve read about the copyright protection that we have over our logo, club logos, graphics, the anthem - those are the things that are very important and pertinent to this topic. We have to protect that copyright and we will.

We’re not motivated by trying to make criminals out of publicans. We really want to help publicans understand the information they are being given by suppliers of unauthorised systems, who say they have technology that can make it legal, is wrong and that is a very risky route to go down. We want more people to understand that because we appreciate there’s a lot of misinformation in the market and it gets very confusing.

With two strong recent cases we have had in high court - the Rhyddings case in Swansea and First National Wine Bar in Liverpool, we now have much more clarity. They were the first since Murphy/QC Leisure case which went all the way to Europe. In both these cases the pubs had to pay a minimum of £65,000 to the Premier League. It’s really important to know both those hearings were summary judgements. These are four-hour hearings where the only outcome is that your argument is so strong you win or this goes to full trial. In both cases we won. So a high court judge is saying ‘We completely understand the copyright issue, it’s clear because we’ve got that from QC Leisure, now we know where we are’.

BJ​: FACT is the UK’s leading trade organisation that protects the film and broadcasting industry against copyright and trademark infringements.

On behalf of members FACT takes action against pubs found to be showing member content without authorisation. These are criminal prosecutions so the end result is a criminal conviction, a substantial fine, the potential for an order to pay costs and in some cases the potential for loss or suspension of a personal licence.

The main message is that with respect to Sky and BT Sport the only way to legally broadcast that content in mainland UK pubs is through a commercial viewing agreement with the proper organisation. Without that persistent offenders will as a last resort face criminal prosecution.

PMA​: How big do you think this issue is? How many pubs do you estimate are showing Sky content without the proper agreement?

AD: The number varies from time to time. Sky employs investigators to mystery shop pubs across the country when our games are showing and that give us a fairly consistent idea on the number. We estimate its anywhere between 2,000 and 4,000 pubs throughout the course of a season.

From our perspective it’s not so much an issue of lost revenue –  it’s just as big an issue of protecting our legitimate customers who pay for a Sky subscription because they know it drives value for their business. They are entirely justified in complaining when they see people leaving their pub to watch 3pm games somewhere else with a foreign satellite system. That is lost business for them and all the more galling when that other licensee isn’t paying the cost of a Sky subscription.

PMA​: Have you got an estimate how much this costs the football industry?

NN​: Our investigators have visited around 7,000 pubs this season to see if they are using unauthorised systems. There’s then a process if they do find a pub doing this that leads to us contacting them and giving them the opportunity to stop doing this. If they don’t then after a certain amount of time we go down the legal route. We think by the end of the season we will have commenced action against about 100 pubs. Bear in mind that does take some time from first viewing to letters asking them to stop, to a bit of contact, to applying to go through legal system and should it get there getting that appearance in court. I would far rather it was dealt with at the outset.

In terms of investment - revenue is obviously an important part of this debate for us but there’s another element which is very important. In this country no one is allowed to broadcast football matches that take place at 3pm on a Saturday. That doesn’t matter if it’s the Premier League, the Football Conference or whatever. That’s something that Premier League, FA and Football League all sign up to. Believe it’s been enforced since late 40s/early 50s. This is something the UK Government supports as well. The rationale is that we want strong attendances at clubs right through the pyramid. We also want strong participation at that traditional Saturday 3.00pm kick-off when grassroots football is being played across the country.

We have found during some recent work we’ve done in Stoke that 3.00pm on Saturday is a real issue because you have both Stoke City and Port Vale work very hard at getting people through the gates. If pubs are in breach of that rule it makes their life a lot more difficult. There is also an element of if pubs want to support their local football club then they can do so by not showing unauthorised broadcast on Sat at 3pm.  

PMA​: Are investigators getting tip offs or are they driving around looking for A-boards advertising games at 3pm on a Saturday?

NN​: It’s a combination. Sometimes pubs who have a valid agreement contact us confidentially and tip us off. It can be adverts in local media or on the roadside.

PMA​: When you approach a pub that you know has been showing games without a valid agreement what is the process? Do you ask for any sort of remuneration for the lost revenue?

NN​: We write to them and ask them to stop. We ask them to sign undertakings saying they won’t do it again. A big chunk come back and say yes. Some don’t and if we end up going down the legal route then as you can see from recent cases there can be large costs involved for them.

The sooner the pubs reply to us and agree to the undertakings, the smaller the costs will be that they have to pay to cover our investigation fees

PMA​: When we run stories about these cases a comment that often comes up is why you are pursuing the publican and not the suppliers.

NN​: We are taking action against suppliers. We have a number of cases in the legal pipeline. Actively at the moment there are two in the courts. It can take time so we are going through that at the moment. There is one nearing conclusion.

We know that suppliers are going into pubs and telling publicans ‘this is ok, this is legal’. The recent cases prove that is not the case. Publicans should be wary of any information saying there is nothing to worry about.

We are also aware that suppliers are offering publicans technology which they think will alter the broadcast in such a way that will make it legal. We’re talking about blurring out the logo, cutting out replays. It’s important for publicans to know that some of the actions we have commenced have been against pubs using that technology.  They are wasting their money.

There’s a lot of copyright-protected works included in the broadcast – every club crest, every Premier League logo, every little box that tells you how many corners there have been or what the possession stats are – that’s all copyrighted.

AD​: We hear a lot of people saying ‘I was given this by X supplier and he assured me it was legal’, and we hear the suppliers coaching the publican to raise the issue of the Karen Murphy case in defence against this.  The Karen Murphy case is completely irrelevant to the issue of copyright infringement. Publicans when they hear this can sometimes be reassured that in the event of legal action that the Karen Murphy case provides a defence, which it doesn’t. These suppliers are very deliberately misleading publicans.

We see that all the time when we go into pubs. Some know these systems are not legitimate but some are genuinely not sure and think ‘ok I’ll give it a go’.

PMA​: When does FACT become involved?

BJ​: Very much at the end of this process. Sky uses its own investigation team to do the initial visit to the pub. A civil action by Sky could be initiated at this stage. Alternatively, those investigators may issue a first warning letter advising them that it’s easily solved by obtaining a commercial viewing agreement or if they don’t wish to show the games to sign the undertaking to stop. They get a few week s to do it. Following that the investigation team will make a presentation visit when they will seek explain what the issue is and how to solve it. If there’s still no response there will be a final warning letter. And at that point the investigator will package up the file and return it to Sky who may pass the file to FACT. We will have summonses served and take things forward.

There is a lot of communication by the time we step in. We’re very much a last resort.

PMA​: With these undertakings are you asking people to give you information about where they got their systems from?

BJ​: Generally FACT happy for them to simply stop. We’re not looking to put the squeeze on them for extra information, but Sky and the Premier League may request this information.

PMA​: Why have we seen such a disparity in the amount people have been ordered to pay in recent cases?

BJ​: Sky and the Premier League may bring civil cases for copyright infringement and this is where you are seeing these larger awards. FACT cases, to date, are all under one piece of legislation – section 2971 of the Copyright Design and Patents Act and it’s a provision that makes it a criminal offence to dishonestly receive a programme with the intent to avoid payment for that programme. While it may involve similar facts as in copyright infringement it is a different offence. Under criminal law the maximum fine for that kind of offence is £5,000 per offence plus costs. It’s important to remember that it was that kind of offence that Karen Murphy was convicted on as opposed to copyright infringement and so under free movement of goods and services and competition it was said she could have this foreign box it undid the dishonesty bit of that conviction. Had that been a straight copyright case that might have been much different.

NN​: If Karen Murphy was tomorrow doing what she did then we would take action and judging by the two recent cases it would be a copyright infringement case in the high court and she’d have a very significant cost bill and an injunction against her pub.

PMA​: Do you intend to carry on the enforcement campaign into next season?

NN​: Absolutely. It will be on a big scale with lots of visits.

PMA​: Are BT Sport also contributing to this?

NN​: Yes, we have been working with BT Sport just as closely as Sky. They have a dedicated team who work on enforcement, they are also members of FACT and they are in touch with pubs as well.

PMA​:  How long do you think this message will to take to hit home?

NN​: I think we’re in a good place now after the hiatus with the cases going to Europe. We can’t put a timeline on it but we’re more active now than we have been at any point.

BJ:​ The law has now settled to the point where the legal position is now quite straight forward. Now it’s just a case of dispelling the confusion that has been built up around.

PMA​: Do you think the case-by-case approach is working? Has there been any thought to having a pub sector amnesty for people who want to put their hands up and give an undertaking they won’t do this anymore?

AD:​ It is something certainly that we have thought about for unauthorised foreign services but the difficulty is that while the law was as unclear as it was in this particular area the effectiveness of an amnesty was open to some debate. Unless licensees actually know what they are doing is wrong then they are unlikely to leap at the chance to stop. We need to use as many court actions as we see necessary to make sure there’s no doubt in anyone’s mind of what they can and can’t do. Until then an amnesty is unlikely to be that effective. But it’s something we might look at again once we feel everyone is sufficiently aware of the legal situation.

PMA​: Do you think the suppliers of these systems are individuals in each area or is there evidence of an organised operation across the country?

NN:​ We have seen some intelligence that suggests there is a fair bit of organisation around some of these businesses supplying unauthorised systems. It’s not just a sole trader – it’s more significant than that.

PMA​: Has the approach from suppliers changed over the years?

AD:​ The nature of what they are supplying has changed. In the earlier days it was far more the domestic viewing cards. They have become more sophisticated in what they supply. Their message to their customers has also changed. I agree with Nick that this is not just one guy with a ladder, this is people who know exactly what they are doing.

NN​: We have also seen pubs using internet streaming. These are sites illegally suing our content from overseas and using that in the pub. We take action on that as well in terms of contacting the pub but we also look at shutting down those infringing websites.

PMA​: If I am a publican who has been showing Sky Sports illegally for a period of time, what would you advise me to do after reading this? If I were to put my hands up and say ‘I’ve done it’.

AD​: The very first thing you should do is stop screening content that you do not have a valid commercial agreement to screen then we would encourage you to get in touch with us.  Some of the loudest complainers about Sky subscription prices are landlords who haven’t contacted us for years. In the last two years alone we have introduced a variety of means of reducing the cost of a subscription.

Download an infographic that details what licensees need to know about illegally screening Premier League football​