Australia's law-enforcement agency has defended its use of a law that requires ISPs to block websites government agencies deem illegal, without judicial oversight.
Australian Federal Police (AFP) claimed they need section 313 of the Telecommunications Act, which requires telcos to enforce criminal laws, protect public revenue and anything deemed to be a matter of national security.
The AFP, financial regulator ASIC and an unidentified national security agency have interpreted the law to mean they have the power to order telcos to block websites hosting illegal material.
But ISPs have called for restrictions. They argue there is not enough oversight and that some providers had even received blocking requests from animal protection agency the RSPCA.
Between 2011 and 2013 the Department of Communications estimated 32 requests to block websites had been made. As far as it was aware, only three government agencies had used the power.
A draft of new legislation aimed at stopping Aussie consumers accessing pirate sites has been published. The amendments, which contain criteria that could see hundreds of sites blocked by ISPs, is believed to have been reworded to ensure
that VPN services don't become caught in the dragnet.
Attorney-General George Brandis and Communications Minister Malcolm Turnbull instiugated the process resulting in the legislation.
The site-blocking elements of the Copyright Amendment (Online Infringement) Bill 2015 are likely to please rightsholders with their significant reach.
In order to apply for an injunction against an ISP, rightsholders need to show that the provider in question provides access to an online location outside Australia and that the location infringes or facilitates infringement of
copyright. The location's primary purpose must be to infringe copyright, whether or not in Australia .
Once an injunction is handed down against an ISP it will be required to take reasonable steps to disable access to the infringing site. What amounts to reasonable will almost certainly be the subject of further discussion as any over-broad
moves could result in collateral damage and bad PR.
There will now be a six week consultation period for additional submissions and tweaks.
The Australian government has given itself powers to censor the internet starting with websites facilitating copyright infringement.
In the eyes of at least one intellectual property academic, the passing of controversial anti-piracy, website blocking legislation in the senate represented a very dark day for the internet in Australia .
The Copyright Amendment (Online Infringement) Bill 2015, introduced into parliament by Communications Minister Malcolm Turnbull in March to curb online piracy of film and TV shows, was passed with Labor's support 37-13.
The legislation allows rights holders to go to a Federal Court judge to get overseas websites, or online locations , blocked that have the primary purpose of facilitating copyright infringement. If a rights holder is successful in
their blocking request, Australian internet providers, such as Telstra and Optus, will need to comply with a judge's order by disabling access to the infringing location.
Sites such as The Pirate Bay and KickAssTorrents are expected to be among the first websites in rights holder's sights.
Dr Matthew Rimmer, an associate professor at the ANU College of Law and one of the bill's critics, labelled the bill quite radical :
It's a very dark day for the internet in Australia because there's been bipartisan support for this Luddite censorship bill.
He said sites that don't intend to host infringing material could get caught up and blocked, pointing to file-sharing sites like mega.co.nz and dropbox.com.
Australia's Internet censorship bill has been passed by the Senate, and will become the Copyright Amendment (Online Infringement) Act 2015. The new law provides an accelerated process for rightsholders to obtain court orders for ISPs to block
sites that have the primary purpose of infringing copyright, or facilitating its infringement--a term that the law does not define.
During debate the government rejected a series of safeguards that the Australian Greens attempted to introduce to mitigate the risk of abuse of the new law. Besides tightening the definitions, these amendments would have provided affected parties
with a right of appeal, and explicitly protected providers of Virtual Private Networks (VPNs), who now may face claims that their services are designed to facilitate copyright infringement.
What were some of the arguments in favor of the censorship law that came up in debate ? They range from less than compelling, to flat-out wrong. Paul Fletcher, Parliamentary Secretary to the Minister for Communications, stated that:
Provisions of the kind contained in the bill have been used in other jurisdictions, including the UK, Ireland and Singapore, and in these jurisdictions an injunction is often ordered without any opposition from the internet service provider
That's not quite true--for example, there has not been a single concluded case yet in Singapore (a country that also bans unlicensed public assemblies, and chewing gum). We can also add a couple of other entries to Fletcher's list-- Russia also
recently introduced copyright censorship laws, shortly after its laws banning LGBT propaganda , and Turkey has had a similar provision in its copyright law since 2004, which it exercises regularly, besides also blocking social media sites
such as Twitter and Facebook. Australia can now be proud to join that illustrious club.
Senator David Coleman foreshadowed the movement of web blocking outside of the legal regime established by the new censorship law, and into the darkness of informal backroom arrangements:
I concur with others in this debate in saying that I think the way that this will play out is that in the early days you will probably see a number of court actions initiated. You will see some court orders issued for take-down notices for
infringing material. But then what will happen, logically, over time, is that ISPs and content providers will work together in a sensible way. No doubt they will circumvent much of that court formality and work together in a constructive fashion
to take down offending material, and that is as it should be.
Amongst the minority of Senators who not only spoke against the law, but also voted against it, was David Leyonhjelm who labelled it bad law and said:
Website blocking is a drastic remedy and a blunt tool. The bill has the potential to be used against a range of legitimate sites and has inadequate protections for non-party interests. Meanwhile, placing increased emphasis on enforcement without
addressing the other overdue reforms of the Copyright Act risks a ridiculously unbalanced copyright regime.
Similar criticisms were made by Senator Scott Ludlam, who did at least manage to successfully introduce one amendment requiring the government to finally respond to the Australian Law Reform Committee's (ALRC) report on Copyright and the Digital
Economy , which had recommended that Australia adopt a fair use exception in its copyright law. The government has repeatedly brushed off this recommendation while pursing its own copyright enforcement agenda, but will now at least be required to
provide the ALRC with the courtesy of a formal response by September 17--almost two years after the report was issued.
After bombarding Australians with one heavy-handed enforcement measure after another over the past twelve months--including mandatory data retention and a co-regulatory graduated response code (which is pending registration), the very least that
Australian users deserve in return is for fair use to be given a fair hearing.
Offsite Article: Porn will be next on Australia's website-blocking agenda...