Internet users face online barriers as site blocking legislation hits parliament

Amidst heated debate in the Senate on Data Retention, Attorney-General George Brandis has officially put website blocking on the table, tabling the Copyright Amendment (Online Infringement) Bill 2015 [PDF] to Parliament today.

The bill provides a new means for rights holders to seek a Federal Court order requiring internet service providers to block overseas websites that facilitate piracy, by taking "reasonable steps to disable access" and thereby preventing access for Australian internet users.

There are three conditions that the court must be satisfied on to grant the block: the site or "online location" must be outside Australia, it must be seen that it "infringes, or facilitates an infringement of, the copyright" and that must be the "primary purpose" of the site.

The bill outlines additional matters that the court must take into account when considering granting an injunction, including the "flagrancy" of copyright infringement and whether blocking the website is proportional and in the public interest.

In points that seem to refer quite specifically to sites like The Pirate Bay, the court should also consider "whether the online location makes available or contains directories, indexes or categories of the means to infringe, or facilitate an infringement of, copyright." However, the bill also works in broad terms, referring to websites that demonstrate "a disregard for copyright generally."

According to the explanatory memorandum provided alongside the bill [PDF], the Attorney-General's Department said the legislation was designed to provide a "specific and targeted" response to copyright infringement in order to ensure the "success of creative industries."

It gives examples of the kinds of things that could be blocked, including sites that provide torrent files, sites that link to or host pirated material and "online storage services" that store this kind of content.

However, the AGD says the bill safeguards against "potential abuse" because rights holders will be required to prove a site's primary purpose is to facilitate piracy. As examples, the memorandum says rights holders would not be able to seek blocks on YouTube or Blogger, or even an art gallery website that contains an unauthorised photograph.

In this memorandum, the total cost to carriage service providers has been estimated at AU$130,825 per year.

Senator Brandis and Communications Minister Malcolm Turnbull confirmed in December last year that the Government would be introducing site-blocking legislation to Parliament as part of a suite of measures to tackle copyright infringement.

The two cabinet members also confirmed in a joint statement that ISPs and rights holders would be required to devise an industry code to tackle piracy, which was to include a graduated notice scheme for infringers. This Industry Code was tabled for public comment in February this year.