ISP Filtering

Consumer ISPs are a key target for regulation. When a user accesses an internet resource (like a website), the traffic necessary flows through their ISP. If it is not possible to easily regulate the user, the ISP may be a convenient target.

Sometimes this is done by explicit statutory schemes; other times, ISPs may be pressured to block access to certain sites by law enforcement or other members of the executive branches of government.

Video Overview by Kaava Watson:Section 313

In Australia, several different forms of pressure have been exercised in recent years to encourage intermediaries to take action to police the actions of their users. The most blunt is direct action by law enforcement agencies, who are empowered to make requests of telecommunications providers under s 313 of the Telecommunications Act. This provision requires carriers and carriage service providers to “do the carrier's best or the provider's best to prevent telecommunications networks and facilities from being used in, or in relation to, the commission of offences against the laws of the Commonwealth or of the States and Territories”, and to “give officers and authorities of the Commonwealth and of the States and Territories such help as is reasonably necessary” to enforce criminal law, impose pecuniary penalties, assist foreign law enforcement, protect the public revenue, and safeguard national security.

The section essentially enables police and other law enforcement agencies to direct ISPs to hand over information about users and their communications. Increasingly, however, it is also apparently used by a number of government actorsto require service providers to block access to content that appears to be unlawful, in cases ranging from the Australian Federal Police seeking to block access to child sexual abuse material to the Australian Securities and Investment Commission (ASIC) blocking access to phishing websites. Even the RSPCA is reported to have used the power, although the details of its request are not clear. There is significant concern over the lack of transparency around s 313(3) and lack of safeguards over its use.1) These came to the fore in 2013 when ASIC asked an ISP to block a particular IP address, not realising that the address was shared between up to 250,000 different websites, including the Melbourne Free University. The operation of s 313(3) is currently under review by the House of Representatives Standing Committee on Infrastructure and Communications.

The Australian Government recently introduced a legislative scheme to enable copyright owners to seek an injunction to require Internet Service Providers to block access to infringing websites and other internet resources.

The Act introduces a new Section 115A, which empowers the Federal Court to order injunctive relief against ISPs on application by copyright owners in respect of an 'online location'. Copyright owners are required to show that “the online location infringes, or facilitates an infringement of, the copyright”, and that “the primary purpose of the online location is to infringe, or to facilitate the infringement of, copyright (whether or not in Australia).”

The Act uses a definition that catches foreign internet sites that 'infringe or facilitate' infringement of copyright. 'Facilitate' is not a defined term in Australian copyright law; there is considerable uncertainty as to the breadth of this test. Presumably, the term is designed to include foreign sites that help people to infringe – for example by providing software or indexing services – but may not necessarily 'authorise' infringement.

The Act introduces a primary limiting factor on this broad 'facilitates' test: the 'primary purpose' of the foreign site must be to infringe or facilitate copyright infringement. Again, this 'primary purpose' test is not defined, but is presumably designed to exclude general purpose services which may be used to infringe. A general purpose search engine, for example, might link to infringing copyright and therefore 'facilitate' infringement, but its 'primary purpose' is to facilitate access to information generally, not to facilitate infringement.

The Federal Court must also take into account any other relevant matters before ordering injunctive relief. There is an enumerated list of the types of things the Court may have regard to in the legislation, and the most significant of these include “whether disabling access to the online location is a proportionate response in the circumstances”; “the impact on any person, or class of persons, likely to be affected by the grant of the injunction;” and “whether it is in the public interest to disable access to the online location”.

Extracts from s 115A:

(1) The Federal Court of Australia may, on application by the owner of a copyright, grant an injunction referred to in subsection (2) if the Court is satisfied that:

  • (a) a carriage service provider provides access to an online location outside Australia; and
  • (b) the online location infringes, or facilitates an infringement of, the copyright; and
  • ( c) the primary purpose of the online location is to infringe, or to facilitate the infringement of, copyright (whether or not in Australia).

(2) The injunction is to require the carriage service provider to take reasonable steps to disable access to the online location.

(5) In determining whether to grant the injunction, the Court may take the following matters into account:

  • (a) the flagrancy of the infringement, or the flagrancy of the facilitation of the infringement, as referred to in paragraph (1)(c);
  • (b) whether the online location makes available or contains directories, indexes or categories of the means to infringe, or facilitate an infringement of, copyright;
  • (c) whether the owner or operator of the online location demonstrates a disregard for copyright generally;
  • (d) whether access to the online location has been disabled by orders from any court of another country or territory on the ground of or related to copyright infringement;
  • (e) whether disabling access to the online location is a proportionate response in the circumstances;
  • (f) the impact on any person, or class of persons, likely to be affected by the grant of the injunction;
  • (g) whether it is in the public interest to disable access to the online location;
  • (h) whether the owner of the copyright complied with subsection (4);
  • (i) any other remedies available under this Act;
  • (j) any other matter prescribed by the regulations;
  • (k) any other relevant matter.

The scheme is inspired by UK legislation that enables courts to enjoin ISPs to block certain websites. Similar schemes exist in other jurisdictions - although, notably, other jurisdictions have found that they are disproportionate. The lack of evidence that the schemes worked led the European Court of Justice to strike down website blocking in the Netherlands.2)


1)
See, for example, Alana Maurushat, David Vaile and Alice Chow, ‘The Aftermath of Mandatory Internet Filtering and S 313 of the Telecommunications Act 1997 (Cth)’ (2014) 19 Media and Arts Law Review 263.
2)
​REIN v ZIGGO (​2012), translation provided by h​ttp:pirateparty.org.au/media/documents/ECLINLGHDHA201488ENGZiggo_v_BREIN.pdf)) An order to require ISPs to block access to The Pirate Bay was overturned on appeal, and the Court noted that rates of infringement had actually increased following the imposition of the block. The inference drawn by the court was that the measure could not have been proportionate, since it necessarily imposed a cost on freedom of speech for little ascertainable benefit.
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