On 26 March 2015, the Australian government released draft legislation aimed at curbing the widespread illicit downloading of copyright material by members of the Australian public.

The proposed laws will establish a dedicated judicial process for copyright owners to obtain “blocking injunctions” against Australian ISPs in relation to foreign websites that have the primary purpose of perpetrating or facilitating copyright infringement. Once granted, a blocking injunction would require an ISP to take reasonable steps to disable access to the website.

Unsurprisingly, the proposed laws have been met with a less than enthusiastic response from ISPs. The major ISP industry body has confirmed “conditional support” for the measures however, and it is expected the draft legislation will eventually pass into law with only modest amendments.

As with other forms of injunctive relief, blocking injunctions would be a discretionary remedy. To guide judges in exercising their discretion, the draft legislation prescribes a number of factors that judges would need to consider before granting a blocking injunction. These include:

  • the flagrancy of the infringement being perpetrated or facilitated by the website
  • whether the website contains directories, indexes or categories of the means to infringe or facilitate infringement
  • whether the owner or operator of the website demonstrates a disregard for copyright generally
  • whether a blocking injunction has been granted in relation to the website by a court in another country

Regarding this last factor, it’s worth noting that the Australian government has formulated its draft legislation having regard to the blocking injunction regime that already exists in the UK. The explanatory memorandum [PDF, 148KB] for the draft legislation refers to two UK court decisions involving blocking injunctions. We previously reported on one of those decisions here.

Comparison with the UK position

Comparing the proposed Australian laws with the UK position raises some interesting issues.

For example, the dedicated copyright blocking injunction laws that were introduced in the UK as part of the Digital Economy Act 2010 (UK) were subsequently repealed in 2012. Copyright owners in the UK have however been able to obtain blocking injunctions under earlier copyright legislation that empowers UK courts generally to grant injunctive relief against ISPs who have “actual knowledge of another person using their service to infringe copyright”.

Another interesting point concerns the UK High Court decision in Cartier International AG & Ors v British Sky Broadcasting Ltd & Ors [2014] EWHC 3354, which is referred to in the explanatory memorandum.

As we previously reported, the Cartier decision involved blocking injunctions being granted to force the major UK ISPs to disable access to websites perpetrating trade mark infringement. By referring to the Cartier decision it would seem that the Australian lawmakers may have inadvertently foreshadowed their draft copyright legislation having broader implications for online infringement of other IP rights.