In a landmark decision of the Federal Court last week, popular torrent file-sharing websites such as The Pirate Bay, Torrentz, TorrentHound and IsoHunt (the Websites) will now be blocked in Australia.
Following the decision in Roadshow Films Pty Ltd v Telstra Corporation Ltd  FCA 1503 (Roadshow Films), major Australian internet service providers (ISPs) must now take reasonable steps to disable access to the Websites, which were held to infringe or facilitate the infringement of copyright. Although the power to compel ISPs to block certain websites has been around since amendments to the Copyright Act in 2015, this it is the first time that the new laws have been used in Australia.
New powers to prevent online infringement
Section 115A of the Copyright Act was introduced to grant the court the power to order an injunction compelling ISPs to take reasonable steps to block online locations that are found to infringe copyright or to be set up for the primary purpose of infringing or facilitating the infringement of copyright.
The Federal Court noted that the test for determining the purpose of a website is one of substance rather than form. In determining whether a website’s primary purpose is copyright infringement, Courts will look both to the purpose for which the website was created as well as the purpose for which it is actually used.
The Court also clarified that the use of the present tense in s 155A does not mean that a website must be online and presently infringing copyright at the time the injunction is made; it is sufficient that the website was online at the time the proceedings were commenced and that it has not been taken down permanently. This approach prevents operators from being able to avoid injunctions simply by taking the website offline temporarily while the proceedings are before the court.
Who foots the bill?
The costs implications of this shift in responsibility are potentially significant and have been the subject of much debate in the history of the Roadshow Films proceedings.
The respondents to the proceedings (major Australian ISPs including Telstra, Optus, M2 and TPG) argued that because there is no allegation of any wrongdoing on their part and because they are essentially assisting the applicants (Roadshow Films, Foxtel, and other copyright owners) to protect their copyright, they should not have to pay the costs of blocking websites found to fall within the scope of s 115A. The Federal Court agreed and ordered that the applicants to pay the respondents $50 per domain name that they are required to block as a result of the injunctions granted.
What does the future hold?
The Federal Court ordered the ISPs to start blocking the Websites within 15 business days, but has allowed the companies discretion to decide on the method to be used to block the Websites. People will be unable to access the blocked Websites and will instead be redirected to a page warning them that the website they are seeking has been blocked by court order.
As is so often the way however, the decision is unlikely to mean the end of illegal downloading in Australia for a number of reasons:
- These orders only apply to The Pirate Bay, Torrenz TorrentHound and IsoHunt specifically, other torrent file-sharing websites are not captured;
- Although the process may be more time and cost effective in the future, it remains the case that an application to the court must be made before an injunction will be granted to compel the blocking of any other website deemed to be “for the primary purpose of copyright infringement”;
- These orders only apply to The Pirate Bay, Torrenz TorrentHound and IsoHunt for three years, after which time the applicants will have to reapply to the court for an extension of the injunction if necessary; and
- The injunction does not prevent the use of VPN technology, which remains a widely used IP-cloaking tool allowing users to bypass Australian blocks.
Nevertheless, this decision is characteristic of the recent interest in online privacy prevention and potentially signals the start of a new era of tougher, more progressive regulation of online file sharing.
Contributor - Amelia Cooper