The Government has stated that injunctive relief orders are “a reasonable, necessary and proportionate response to protect the rights of creators and their licensees from infringing material being distributed to, or accessed by, persons in Australia.”
This position is consistent with governments and courts throughout Europe.
The European Court of Justice, CJEU (the highest appellate court in the European union, whose decisions are binding across all EU member states) has found that injunctive relief orders were proportionate because the orders allowed the ISP to determine the precise means of implementation to achieve the objective, they did not “unnecessarily deprive internet users of access” to legitimate content and that the measures had the effect of preventing or “at least…making it difficult to achieve and of seriously discouraging internet users who are using the services of the addressee of that injunction from accessing the [infringing] subject-matter.”
“Telstra agrees in principle with the Government’s proposal that Australian courts should be given a power to grant an injunction to block access to overseas websites, determined by the court in all the circumstances to be facilitating online copyright infringement. Telstra notes that similar mechanisms have been successfully implemented in England and Ireland. Importantly, such a mechanism would directly target the source of copyright infringing content and help reduce the number of downstream customers with access to infringing content.” – Telstra
This is consistent with the position taken by major ISPs in the United Kingdom (UK):
“We have invested billions of pounds in high-quality entertainment for our customers because we know how much our customers value it. It’s therefore important that companies like ours do what they can, alongside the government and the rest of the media and technology industries, to help protect their copyright.
Such protection makes sure that consumers continue to benefit from TV programmes, movies and music both now and in the future. This means taking effective action against online piracy and copyright infringement.” – Sky Broadband
A report by Incopro in 2014, studied the 250 most popular piracy sites in the United Kingdom that made available infringing film and television content. Key findings of the report included:
- • court imposed site blocking orders resulted in a significant decline in traffic to all blocked piracy sites. For example, the UK site blocking order for The Pirate Bay obtained in June 2012 and implemented in July 2012 resulted in a decline in traffic by UK internet users to The Pirate Bay of 83.9%;
- • traffic to blocked piracy sites plunged 77.5% on average, compared to an increase of 20.9% for the same piracy sites outside the UK where no court imposed site blocking orders were in place;
- • within the UK, traffic to all 250 piracy sites analysed (majority of which were not subject to a UK site blocking order) reduced by 22.9% on average, versus an increase in traffic of 7.8% globally, demonstrating that injunctive relief had an overall effect in decreasing the growth of piracy sites compared to the rest of the world
The fact that a small number of users could seek to circumvent the orders does not deny their effectiveness. This issue has been addressed by UK courts when they considered and ruled on a challenge to the efficacy of the site blocking orders by an ISP claiming that subscribers could circumvent the orders by several technical means. In one of the leading cases, Justice Arnold rejected the challenge and made the site blocking orders, finding that it was justified “even if it only prevented access by a minority of users”. That decision has been applied in subsequent cases.
In another UK court case, Justice Kenneth Parker dealt with the issues of circumvention in determining efficacy:
“It is not disputed that technical means of avoiding detection are available, for those knowledgeable and skilful enough to employ them. However, the central difficulty of this argument is that it rests upon assumptions about human behaviour. Experts can seek to establish a profile of those who engage in P2P file sharing, and their various reasons for doing so, and may then attempt to predict how these users may be likely to respond if confronted with the kind of regime that the DEA enacts. In theory, some may cease or substantially curtail their unlawful activities, substituting or not, for example, lawful downloading of music; others may simply seek other means to continue their unlawful activities, using whatever technical means are open. The final outcome is uncertain because it is notoriously difficult accurately to predict human behaviour…” – Kenneth Parker J in R (on the application of British Telecommunications plc) v Secretary of State for Business, Innovation and Skills  EWHC 1021
The aforementioned report by Incopro in 2014 also found that although some users in the UK continued to engage in illegal downloading by using dedicated and multi-site proxies to circumvent judicial relief orders, that traffic was insignificant when compared to the overall decline in traffic to the blocked piracy site. – Incopro, Site Blocking Efficacy Study – United Kingdom
The government has stated that injunctive relief legislation should be entirely consistent with Australia’s international obligations under human rights and equivalent treaties and commitments. This is reflected throughout Europe where courts hearing site blocking applications give due weight to the human rights of the parties involved and consider it appropriate to order ISPs to block access to pirate sites. In the Kino case, the CJEU (the highest appellate court in the European union, whose decisions are binding across all EU member states) found that a site blocking injunction did not infringe an ISPs freedom to conduct a business because it leaves the ISP to determine the specific measures, which are best adapted to the resources and abilities available to the ISP, and allows the ISP to avoid liability for damages by showing it has taken all reasonable steps to prevent infringement. So far as customers’ rights are concerned, the CJEU also observed that the measures implemented must ensure compliance with the fundamental right of internet users to freedom of information. To achieve that, the measures must be strictly targeted. National courts of the European Union consistently find that injunctions targeting specific websites achieve that objective.
Recent research conducted by Sycamore indicates that almost 50% of Australian adults believe that Australian courts should be allowed to decide to block overseas websites that solely profit from pirated movies, TV shows or other copyrighted content.
Availability is one part of an overall framework in addressing content infringement. Australia currently has 40 legal content platforms – and that is just for Movies + TV! Popular content is now readily being made available on the same date, and the same time as the United States.
Village Roadshow has stated its intent to release all movies on the same date in all international locations:
“Movies will come out at the same time but the other important element in this is that there has to be a theatrical window so the business model can work and movies can get made” – Graham Burke
The Australian Government has recognised the work Rights Holders are doing in bringing digital content to the market faster than ever before.
“The issue of price and availability of legitimate content in Australia was a key factor raised in the majority of submissions to the Online Copyright Infringement Discussion Paper. The Government notes recent efforts by the industry in this area, and expects industry to continue to respond to this demand from consumers in the digital market.” – Senator the Hon George Brandis QC, the Hon Malcolm Turnbull MP
The risk of over-blocking primarily exists when other websites are located on the same server as the piracy website intended to be blocked. To prevent ‘overblocking’ rights holders ensure that piracy sites referred to the courts for blocking orders have either one or more dedicated IP addresses for their sole use. In the instance when an IP address(es) resolves to more than one site, the onus of due diligence is on the rights holder to ensure the IP addresses they provide to the court are correct and do not impact other sites. This process has always been satisfied in the UK who have a similar court ordered site blocking process.
There has only been one case in the UK where one site (TorrentFreak.com) was inadvertently blocked when the court issued blocking orders against piracy website EZTV. However that only occurred as a result of deliberate action by EZTV who modified their DNS entries after being blocked to have the same IP address as that of the ‘Torrent Freak’ website resulting in said online publication being blocked as well.
There are now 32 countries in Europe that have legislation that incorporates provisions for the blocking of infringing overseas websites. The internet remains fully functional in those countries…and throughout Europe!