BY SAM ALFAN.
Safaricom has been handed a reprieve after the Court of Appeal suspended a ruling directing the giant telecommunications company to block some 141 websites that have been streaming matches allegedly pirated from SuperSport channels.
The giant telecommunications company convinced the Appellate court that the issues it raised in the appeal were serious and needed to have been considered before the order to block the sites were issued.
“The upshot of the above is that Safaricom has satisfied the conditions for granting an order of stay of execution under Rule 5(2)(b) of the Court Rules, and deem it appropriate that we grant an order of stay of execution of the order of the High Court,” Justices Hannah Okwengu, Fatuma Sichale and Jamila Mohammed said.
The giant telecoms company argued that forcing it to comply with orders would have serious ramifications, including the risk of criminal and civil cases from its subscribers.
In the ruling last November, Justice Wilfrida Okwany directed Safaricom and Jamii Telecom ltd to block the 141 sites that stream the matches broadcasted exclusively by MultiChoice.
MultiChoice Kenya had argued that the rebroadcasting and re-transmitting of the football matches, without its authorisation was a breach of its rights.
But Safaricom moved to the Court of Appeal arguing that the order was mandatory, thus requiring it and Jamii Telecom to put in place measures preventing their subscribers from accessing the 141 websites
Safaricom argued that Justice Okwany failed to consider if there were any special circumstances that required the granting of the order.
The court also heard that MultiChoice failed to demonstrate that the take down notice relied upon by MultiChoice was defective because the Pay-TV Company did not produce the licence which they made with the owners of the Copyright, authorising the issuance of the notices on its behalf.
Safaricom further said it risks criminal and civil proceedings, as well as sanctions and backlash from its subscribers and the true owners of the materials affected. Safaricom also said its reputation in the global telecommunication industry is at stake.
The giant telecoms also said complying with the order would affect the rights of other copyright holders, and that the damage to its local and international reputation would be irreparable.
On its part, MultiChoice argued that the order was temporary and that Safaricom had in fact expressed its willingness to comply with the court order, and even sought a virtual meeting with its lawyers to discuss the matter.
The Pay-TV Company also said Safaricom had not complied with the order and was seeking relief from court without clean hands.
The Judges noted that both Safaricom and MultiChoice agreed that the dispute involves take down notices in Copyright (Amendment Act) 2019, which is an emerging area of law.
“There is no doubt that the development of this law will require frequent intervention of the courts by way of interpretation of the law,” the Judges said.
