A host of relevant issues
Since the introduction of the remedy in 2015, site-blocking orders have prevented a range of pirated copyright materials, including films, television programs and musical works, from being accessed online. In Australia, site-blocking orders typically require Internet Service Providers (ISPs) to block the relevant domain name, URL or IP address, and to redirect users to a webpage that informs them that access to the online location has been disabled.
The main factors relevant to the exercise of the Federal Court’s power to make site-blocking orders under section 115A of the Copyright Act (as it then stood) are helpfully outlined in a 2017 decision, Universal Music Australia Pty Ltd v TPG Internet Pty Ltd  FCA 435. In this case, Justice Burley summarised the following salient points:
- The Act imposes an intentionally high standard for the Court to grant an injunction and is a targeted remedy used to prevent online locations which flagrantly disregard the rights of copyright owners from facilitating access to infringing materials.
- An injunction may be granted in respect of an online location outside Australia that infringes or facilitates the infringement of copyright, and where the primary purpose or effect of the online location is to infringe or facilitate the infringement of copyright.
- It is not necessary for the copyright owner to establish that the ISP was aware of the infringing activities.
- ‘Online location’ captures a broad range of online locations and emergent technologies.
- Once the copyright owner has established that the location infringes or facilitates the infringement of their copyright, the Court will take a broad view of the primary purpose or effect of the online location and will consider the infringement of copyright owned by third parties.
Targeting search engine providers
While the Federal Court has made site-blocking orders in respect of various online locations (including specific domain names, URLs and IP addresses), the Court has not yet made any orders against search engine providers despite a broader discretion to target such providers being introduced in 2018.
Section 115A was amended in December 2018 to broaden the Court’s discretion to target search engine providers. The most significant changes involved:
- Broadening the threshold test so that the Court can now consider the primary purpose or effect of a target online location.
- Empowering the Court to require a search engine provider to take reasonable steps to not provide search results that provide access to an online location.
- Allowing for the ISP and copyright owner to agree that an injunction should be extended to domain names, URLs and IP addresses that have started to provide access to an online location that was previously the subject of an order.
The amendments were introduced to reduce the burden on copyright owners and to increase the effectiveness of injunctions against target online locations, such as cyberlockers, that may not otherwise have been caught under the primary purpose test prior to the amendments.
The future of site-blocking orders in Australia
The cases that have considered section 115A to date have been brought by large media and entertainment companies who distribute films, television programs and musical works in Australia. In these cases, copyright owners have been overwhelmingly successful in obtaining injunctions in respect of online locations. Two recent decisions of the Federal Court illustrate this:
- In Roadshow Films Pty Limited v Telstra Corporation Limited  FCA 1328, various copyright owners (including Netflix) obtained an injunction against operators of several target online locations which allowed users to stream or torrent motion pictures and television programs, or provided links to content located elsewhere.
- Similarly, in Foxtel Management Pty Ltd v TPG Internet Pty Ltd  FCA 1450, Foxtel (a leading Australian pay TV provider) obtained orders blocking a number of target online locations. In this case, the orders made by the Court included a mechanism for the extension of the injunction by agreement between Foxtel and the respondent carriage service providers.
The Federal Court has not yet considered an application for an injunction against a search engine provider and as a result, the broader scope of section 115A in its amended form has not been tested.
Site-blocking orders have also been criticised because of the potential for Australians to use VPN services to enable them to circumvent the attempt to block the online location and to continue to use the ISP’s services.
Given that Australia is a substantial net importer of copyright material, the success of Australia’s site-blocking regime will ultimately require a balance between the recognition of the rights of copyright owners and the ability of the public to legitimately access copyright material via the internet.