Decoding satellite broadcasts intended for EU audiences to be criminal offence after Brexit

July 30, 2019

The UK Government has announced that it plans to make certain use of a decoder device a criminal offence after Brexit.

Satellite broadcasters often restrict their broadcasts on a territorial and paid-for basis by encrypting their transmissions. To access a broadcast, consumers purchase or lease ‘decoder devices’ (set-top boxes), which convert the encrypted transmissions to a watchable form.

Illicit (for example, cloned) decoder devices or decoder devices intended for use in another country are sometimes used to access programmes that are otherwise available via a legitimate, UK broadcasting service. Section 297 of the Copyright Designs and Patents Act 1988 makes this a criminal offence when done dishonestly to avoid paying a charge to the UK broadcaster.

In 2011 the Court of Justice of the European Union ruled in Joined Cases C-403/08 Football Association Premier League Ltd and Others v QC Leisure and Others and C-429/08 Karen Murphy v Media Protection Services Ltd that section 297 should not apply where it prevented persons in the UK from using legitimate decoder devices intended for use elsewhere in the EU, even where they do so to avoid a charge for the relevant UK broadcasting service. This is because such a restriction is inconsistent with the EU’s rules on freedom of services in the Treaty on the Functioning of the European Union.

This means that, before the UK leaves the EU, UK consumers can use legitimate satellite decoder devices intended for use in the EU to view programmes otherwise included in UK broadcasts. The reason for accessing the EU broadcasting service does not matter.

The government intends to disapply provisions on freedom of establishment and the free movement of services once the UK leaves the EU. Under these changes, the existing restriction to the criminal offence defined in section 297 of the CDPA will end. From exit day, it will become an offence to use satellite broadcast decoder devices intended for EU audiences to access a programme included in a broadcast made from the UK with the intent of avoiding a charge associated with the programme. This is already the case for satellite decoder devices intended for non-EU audiences.

Persons in the UK who currently access satellite broadcasts intended for EU audiences for this purpose will need to cease those activities or risk committing an offence under section 297. The government recommends that those people purchase the relevant UK satellite broadcast package.

The change will not affect those who use EU decoder devices to access programmes included in UK broadcasts for purposes other than the avoidance of a charge. For example, expats living in the UK who use decoder devices intended for EU audiences to view programmes in their native language are not, nor will they be, covered by the offence of section 297, provided there is no intent to avoid any charge associated with the programmes. This change will not weaken or change in any way the illegality of illicit decoder devices for the acts specified by section 297 (eg cloned, counterfeit, or stolen decoder devices).