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Foxtel has called for the likes of Google, Yahoo and Bing to be targeted alongside ISPs under new site-blocking laws on the table in Australia.
First introduced to Parliament last month, the site-blocking legislation allows rights holders to request that ISPs block overseas websites that “facilitate” piracy. Under the draft bill, rights holders can seek a Federal Court injunction to have the websites blocked at an ISP level, though they must satisfy the court that the sites’ “primary purpose” is to facilitate the breach of copyright.
But while the Government has specifically outlined [PDF] that search engines are “not the intended targets” of this legal action, Foxtel has now called for changes to include them within the scope of the laws.
In its submission to the Senate Committee currently reviewing the Copyright Amendment (Online Infringement) Bill, Foxtel called for the laws to be “broadened.”
“As currently drafted…[the bill] applies only to ‘carriage service providers,'” the submission reads. “The scope of the Bill should be broadened so as to apply to service providers and intermediaries (eg search engine providers), by deleting the word ‘carriage.'”
A spokesperson for Foxtel argued that extending the law to search engines would not “create an ‘internet filter,'” because courts would be required to take a number of factors into account in ordering an injunction and “a very high threshold must be satisfied”.
Instead, Foxtel argues that its proposed changes will ensure the bill remains “technologically neutral and capable of broad application”.
However, these appeals have been criticised by copyright experts, with Sydney Law School Associate Professor Kimberlee Weatherall saying it would be “very surprising” if the Government heeded Foxtel’s demands.
“The legislation is targeted at something quite specific, which is carriage service providers blocking access to all their customers to known flagrant infringing sites,” said Weatherall. “It’s not intended to be broad. This is intended to be a narrow, targeted response to a specific problem.”
Weatherall also noted that most search companies already have “notice and takedown” schemes in place, meaning they can remove links to copyright-infringing material from their search results at the request of rights holders.
While Foxtel has looked overseas for proof of site-blocking success — a Foxtel spokesperson said that “similar laws overseas, which are working well, apply more broadly to service providers and intermediaries” — Weatherall says Australia lacks the same ‘safe harbour’ schemes seen overseas that protect search engines from legal action.
Essentially a safe harbour scheme ensures that the likes of YouTube, social media sites and search engines “get protection from legal liability [over copyrighted material] provided they have a system of notice and takedown.” According to Weatherall, these protections exist in “pretty much every developed country except Australia.”
“I think you could characterise it as cheeky to demand an even more extensive site-blocking set of rules without any recognition of…the concerns of the other side.”
