Australia considers reform of its website blocking regime, including possibility to target search engines and new types of injunctions

As readers will know, over the past few years, Australia has considered or has introduced a number of changes to its copyright law. The latest news concerns online piracy and how to tackle copyright infringements occurred via the internet more effectively by means of enhanced website blocking orders. 

Katfriend Fiona Philiips (Fiona Phillips Law) explains the background to and content of a bill that was introduced a few days ago.

Here’s what Fiona writes:

Australia has traditionally experienced relatively high levels of copyright infringement. In 2015, the Australian Government introduced site blocking as a remedy into the Australian Copyright Act. The scheme enables rights holders to apply to the court to order service providers to block access to foreign websites which have the primary purpose of infringing (or facilitating infringement of) copyright. It is largely modeled on the successful site blocking regime in the UK.

Since its introduction, the scheme has been used by the music, film and TV industries to block access to sites such as Kickass Torrents. Research by the Government into online copyright infringement has shown that site blocking has contributed to a drop in online copyright infringement in Australia.

Critics of the original scheme argued that site blocking would place unnecessary burdens on service providers and would lead to a pointless game of “whack-a-mole”. In order to address these criticisms, the Government undertook to review the scheme in 2018. That review was conducted earlier this year. It found that the scheme was operating effectively but identified some pressure points:

• Search engines enable users to discover the existence of blocked websites and provide alternative pathways to get to those sites;
• The types of online infringement had become broader, with increased uses of “cyberlockers”, that allow mass file-sharing;
• New pathways to the blocked sites appear after the initial blocking, and these new pathways can't be blocked because they are not part of the original court order;
• It can be difficult and costly to determine whether an online location is, in fact, located overseas.

These findings are supported by research commissioned by Creative Content Australia.  

They have been addressed in the Copyright Amendment (Online Infringement) Bill 2018. The Bill broadens the scope of the site blocking scheme in a number of ways:

1. It extends the scheme to sites which have the “primary effect” of infringing, or facilitating the infringement of, copyright;
2. It includes a rebuttable presumption that the site is outside Australia, to reduce the evidentiary burden on rights holders;
3. It enables rights holders to seek injunctions requiring online search engine providers to take such steps as the Court considers reasonable so as not to provide search results that refer users to online locations blocked under the scheme;
4. It clarifies that the Court may grant responsive and adaptive injunctions.

The Bill was introduced into Parliament on 18 October. It has bipartisan support and is likely to be passed before the end of 2018.

The extension of the site blocking scheme to search engine operators is another indicator of what some have called the “Era of Internet Accountability”. 

It will be interesting to see how this unfolds in the first application under the new legislation. Something to look forward to in 2019.