The FA Premier League, which is the governing body for the English Football Premier League, is locked in a dispute over the use made of photographs taken at Premier League matches. At issue is the restriction which the Premier League seeks to impose on those photographers who are given access to football stadia. As part of the licence to enter stadia and take pictures, photographers are required to agree to certain conditions. One of those conditions states that photographers may not distribute their photos to any person for use in a magazine or periodical which is devoted solely to a single club or player.
The defendant, LCD Publishing Limited, publishes magazines which are devoted solely to a single player or club. In their action against LCD, the Premier League have, amongst other things, argued that by using photographs supplied to them in breach of the conditions of which they are aware, LCD have committed various economic torts such as conspiracy, knowing inducement of breach of contract and unlawful interference with contract. LCD have sought to defend this aspect of the Premier League's claim by arguing that the restriction imposed in the licences under which photographers operate are in unlawful restraint of trade and also breach Section 2(1) of the Competition Act 1998 which prohibits anti-competitive agreements. These are referred to as competition defences and are becoming an increasingly used tactic in litigation.
The Premier League sought to have the competition defences struck out. Unfortunately for them (since dealing with competition defences can become a costly exercise, especially since expert evidence is invariably necessary) the Court refused to strike out the defence, which therefore lives to fight another day. However, it did require LCD to provide further particulars of its defence or face the prospect of it being kicked into touch.
It will be interesting to see how this case evolves and whether the competition defence does receive a full airing in court. Other sports bodies who include similar restrictions on photographers will no doubt be watching this case with interest.
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