Court issues Norwich Pharmacal order against website-hosting service provider

In a recent case before the Hong Kong High Court three North American satellite broadcasters (Dish Network LLC, Echostar Technologies LLC and Bell ExpressVu Limited Partnership) applied for Norwich Pharmacal relief in relation to a number of websites used for or involved in the sale of pirate hardware or software used to descramble the broadcasters’ encryption technology in order to view programmes without paying subscription fees. The plaintiffs relied on Section 275(2)(b) of the Copyright Ordinance as the information published on the infringing websites could enable people to receive programmes or other transmissions without being entitled to do so.

Section 275 of the Copyright Ordinance provides that:

(1) a person who-

(a) makes charges for the reception of programmes included in a broadcasting or cable programme service provided from a place in Hong Kong or elsewhere; or

(b) sends encrypted transmissions of any other description from a place in Hong Kong or elsewhere, is entitled to the following rights and remedies;

(2) has the same rights and remedies against a person who...

(b) publishes any information which is calculated to enable or assist persons to receive the programmes or other transmissions when they are not entitled to do so,

as a copyright owner has in respect of an infringement of copyright.

The defendants were the company providing the server(s) in Hong Kong for the infringing websites and the director of that company. 

The defendants argued that publication did not occur unless and until a member or subscriber of the infringing websites clicked on the link to initiate the streaming of the pirate software from the defendants’ server in Hong Kong to the server of the member or subscriber in North America; therefore, publication did not take place in Hong Kong. The judge preferred the dictionary meaning of ‘publish’ and found that the mere availability of the software on the websites amounted to publication; therefore, it constituted an infringement of the plaintiffs’ rights as copyright owners.

The defendants were ordered to disclose the details of the owners and/or operators of the infringing websites and records of the names of the members of or subscribers to the infringing websites, subject to the plaintiffs’ undertaking that, should they obtain information from the defendants regarding innocent users, they would not use such information for any purpose.

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