Two internet service providers have gone back to court seeking to set aside orders requiring them to block 141 online sites alleged to air pirated content owned by MultiChoice.
Safaricom has appealed the decision, arguing that the High Court failed to allow it to argue its case. Jamii Telecom has gone to the same court seeking a review of the orders.
Safaricom, in its appeal filed by lawyer Geoffrey Imende, faults Justice Wilfrida Okwany for issuing the orders. The telco said Justice Okwany failed to consider that the pay-TV firm did not provide proof that it owned the content on the sites or authority from content owners to sue on their behalf.
The telco argues that the contested sites have various games other than football, which would expose it to either litigation or a backlash from the subscribers. “As a result of the foregoing, the mandatory injunction issued by the superior court exposes the applicant to great risk, as he may take down content which does not belong to the first respondent, exposing itself to the possibility of criminal or civil sanctions and backlash from its subscribers,” argued the telco.
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The lawyer noted that though it had taken steps to obey court orders by seeking additional information on the sites, there was a likelihood of Safaricom bosses being cited for contempt of court.
“The applicant is at risk of being found in contempt of the orders issued by the superior court, and this may irreparably harm and damage the reputation they have built in the global telecommunications industry,” he said.
Jamii Telcom, through lawyer Andrew Musangi, urged the court to temporarily stop implementation of its orders and review them.
“The applicant (Jamii) prays for this court to review and set aside the interim mandatory injunction granted on November 26,” Musangi argued.
Meanwhile, MultiChoice has gone back to court seeking to punish Safaricom and Jamii Telecom bosses, claiming they have not obeyed orders issued on November 26.
Through its lawyer Eddie Omondi, the pay-TV firm argues that although Safaricom has shown willingness to cooperate, it has not blocked the sites despite being offered additional information.
Jamii Telecom, however, said it was impossible to comply. “It is now apparent the first respondent’s engagement of the applicant was a purely staling gimmick and that it has never intended to comply with the court order," argued Mr Omondi.
MultiChoice sued Safaricom and Jamii Telecom over copyright infringement. The case will put to test the effectiveness of the Copyright Act 2019 in addressing such disputes.
MultiChoice wants the court to compel the two firms to block access to websites streaming matches pirated from its SuperSport channels
Safaricom and Jamii Telecom denied infringing Multichoice’s copyright, arguing their role was to provide internet to clients and have no control over what they do with it.
They said Communications Authority was best placed to block any sites or pull down any content infringing Multichoice’s rights. The sites, they said, do not belong to them.