'I can't believe it's not a filter' website-blocking legislation to hit parliament in 2015

Legislation that will allow rights holders to get piracy websites blocked by Australian internet service providers will hit the parliament in the first half of 2015.
Written by Josh Taylor, Contributor

The Australian government will introduce legislation into parliament early next year that will see piracy websites blocked from access, but Communications Minister Malcolm Turnbull denies that it is a form of internet filtering.

On Wednesday, Turnbull and Attorney-General George Brandis issued rights holders and internet service providers with an ultimatum to develop a code for sending warning notices to users who repeatedly share infringing TV shows, films, and music online, or face tough new government legislation mandating a set scheme.

The industries have until April 8, 2015 -- coincidentally the same week that the highly infringed hit HBO TV show Game of Thrones returns to our screens -- to get a scheme in place. In the meantime, the government plans to introduce legislation that will allow rights holders to go to the court and force ISPs to block websites that are predominantly for the purpose of copyright infringement.

It is unclear exactly what type of copyright infringement will be grounds for a site to potentially be blocked, or which rights holders can apply to a court to have a site blocked. The detail is likely to come in legislation, which Brandis told a Senate Estimates hearing on Thursday would be in the parliament in the first half of 2015.

"That is subject to the parliamentary business committee, which has not made a decision in relation to that issue yet, but the government would be looking to deal with that matter in the first half of next year," he said.

Brandis said he hopes that the opposition Labor party will support the legislation, as the government may need the votes to pass the legislation through the Senate.

Earlier this week, Shadow Communications Minister Jason Clare said the plan to block websites is "unlikely to be an effective strategy for dealing with online piracy".

Clare's comments are similar to comments Turnbull made in opposition in 2012 about the then-Labor government's plans for a mandatory internet filtering scheme.

"The Coalition's opposition to Labor's proposed filter were that it included sites not deemed illegal, it slowed the overall performance of the internet, imposed significant and unnecessary costs on ISPs, and ultimately will not work."

Turnbull has rejected suggestions that the government's proposal to block piracy websites constitutes a return to internet filtering, telling journalists on Wednesday that to call the proposal to block infringing websites an internet filter is "complete BS".

In a blog post on Thursday night, Turnbull again sought to separate the legislation from internet filtering, stating that internet filtering is designed to block a certain category of websites designated by the government, while the government's legislation will allow a certain category of websites to be blocked by court orders sought by rights holders, not the government.

"It will be a court, not the government, that will determine which sites are blocked. Moreover, this is not an automatic process, but determined by a court with all of the normal protections of legal due process. In other words, a judge will make the decision, after hearing evidence and argument, not an algorithm in the software operating a router," he said.

"In considering whether to grant an injunction, the court would be required to have regard to the rights of any person likely to be affected by the grant of such an injunction. The court procedures would enable a court to give such directions as it considers appropriate in all of the circumstances."

The former Labor government's mandatory internet filter was not one that would have been an "algorithm in the software operating a router", however. The plan was originally to require ISPs to block websites on the Australian Communications and Media Authority's so-called "black list" of websites considered to be restricted content beyond an R18+ rating.

The Coalition briefly held an opt-out internet filtering policy in September 2013 to block all adult content, but after ZDNet revealed the policy, it was abandoned within five hours.

Notice scheme to have 'enormous economic benefit'

The government will conduct a regulatory impact study to determine how the cost of implementing the notice scheme will hit Australian ISPs. Turnbull has said that it is expected that the rights holders will bear a large portion of the costs because they stand the most to gain.

The effectiveness of the scheme remains questionable, however, with differing views on the evidence produced on schemes operating in New Zealand and the United States as to whether they actually help reduce the number of people downloading infringing TV shows, films, and music.

Brandis said on Thursday that there is "some empirical evidence that they work quite well", and would benefit rights holders.

"The test of success is not the complete elimination of online piracy, because, from a practical point of view, that is unlikely ever to be achieved. So this is a percentage game," he said.

"That is why the government favours the graduated education and warning notice scheme, because there is a significant body of evidence that that has a significant impact on behaviour, and the volume of this problem and the economic cost to the creative industries of this problem is so large that to reduce the extent of piracy by a substantial amount, even if it does not entirely eliminate the problem, will be an enormous economic benefit to the creative industries -- and they understand that, by the way."

Brandis said he has had "very extensive" discussions with rights holders about the scheme.

"They understand that the approach is to play a percentage game, to try through incentives and warnings to change consumer behaviour while acknowledging that inveterate or intractable consumers are going to be less able to be influenced than unwitting consumers, shall we say, who might not even realise that they are doing anything wrong," he said.

If the so-called voluntary code is not ready to go and up to government requirements by April 8, then the government will look to legislate its own code.

The code will ultimately be technology neutral, and Attorney-General's Department first assistant secretary Matt Minogue indicated that the scheme may in future catch file sharers using virtual private networks (VPNs) to mask their IP addresses from view.

"While for the moment rights holders have the technology and capacity to identify peer-to-peer infringement -- and VPN infringement is a little more opaque to them -- that might not be the case in the future; there might be other technologies to detect infringement," he said.

"So, government would expect that any measures, particularly those directed, as the attorney said, to education and informing users, would be equally applicable if the technology arrived, at some stage in the future, to support that."

Editorial standards