SKY Television, New Zealand’s largest pay television provider, has prepared a draft application to the High Court, seeking to obtain injunctions against several internet service providers (ISPs) requiring them to block websites allegedly hosting copyright-infringing material. If pursued, this application may face some difficulties.
SKY names as respondents in the draft application the four largest ISPs in New Zealand – Spark, Vodafone, Vocus (primarily trading to retail consumers as Orcon) and 2Degrees. The injunction sought would require that the ISPs block any infringing websites (via URL or IP address) within 10 days of notice from SKY.
In a related press release, SKY have claimed the allegedly infringing websites are designed solely to facilitate piracy of media content. They also note that ‘over 40 countries’ have put in place site-blocking legislation and say that they are looking to do the same.
Australia and the UK have comparable copyright laws to New Zealand however, unlike in New Zealand, site blocking is already under way.
In Australia, s115A of the Copyright Act 1968 specifically allows copyright owners to seek injunctions against ISPs providing access to ‘online locations’ which infringe or facilitate infringement. S115A has been used to require ISPs to block sites such as Torrentz, IsoHunt and The Pirate Bay in cases brought by copyright licensees.
In the UK, injunctions have been granted under s97A of the Copyright, Designs and Patents Act 1988, which allows for injunctions against ISPs which have actual knowledge that a person is using their service to infringe copyright. In contrast to Australia, this provision does not expressly allow site blocking but has been used to similar effect. This law was first used to obtain a site blocking injunction in 2011, when movie studios sought an injunction against British Telecom to block access to the infringing ‘Newzbin2’ website. Neither British Telecom nor any other UK ISPs contested the application.
New Zealand does not have specific site-blocking legislation. SKY’s application seeks to rely on section 92B of the Copyright Act 1994, or alternatively on the inherent jurisdiction of the courts, which appears to be an attempt to replicate the UK situation.
s92B deals with the liability of ISPs if their users infringe copyright and so does share some similarities with the UK’s s97A. However, s92B is mostly focused on absolving ISPs of responsibility if they comply with the requirements of ss122a-122u, the three-strikes ‘infringing file-sharing’ provisions of the Act.
Those provisions simply require the ISP to act as a go-between allowing a copyright owner to send warning and detection notices to an infringing user, and eventually to take the user to a hearing before the copyright tribunal. To date these provisions have seen limited use, and no action has been taken since 2015. Section 92B(3) clarifies that 92B as a whole does not generally prevent a copyright owner from seeking injunctive relief against an ISP.
Another key difference is that in the UK it was generally copyright owners or their representatives seeking to block piracy sites. SKY is likely to be only a licensed user of much of the copyright content at issue in this case.
While SKY has at least the potential to succeed here, it seems it is likely to have a fight on its hands. Unlike in the UK, New Zealand ISPs have already signalled their opposition to what Vocus has called an attempt to ‘censor the internet’. It will be interesting to see whether the application changes between draft and final stage – and what happens if and when the parties engage before the courts.