Website Blocking Injunctions to Prevent Copyright Infringements: Proportionality and Effectiveness

The jurisdiction to award no-fault injunctions against Internet intermediaries, such as ISPs, to block Internet access to deter online copyright infringement is the most recent addition to intermediary liability law. In Australia, s 115A of the Copyright Act 1968 (Cth), which provides for injunctions against intermediaries that provide access to online locations outside Australia, came into effect on 27 June 2015; and the first injunctions were awarded by Nicholas J of the Federal Court on 15 December 2016. The jurisdiction to award this form of injunction was inspired by s 97A of the Copyright, Designs and Patents Act 1988 (UK), which implements a European Union directive, while the drafting was influenced by equivalent provisions of the Singapore Copyright Act introduced in 2014. This article identifies and analyses issues relating to the limits on this new jurisdiction, focusing on the potential role of the proportionality principle, as developed under EU law, to set principled limits on the award of blocking orders. In doing so, the article examines three difficult issues that arise in applying the proportionality principle to website blocking: the application of ‘rights-balancing’ proportionality; the effectiveness of blocking orders; and the costs of blocking, including the allocation of costs between right holders and intermediaries. The article concludes that, despite the significant challenges involved in assessing the proportionality of blocking orders, there is scope for Australian law to develop to more explicitly take into account considerations arising from proportionality analysis, including ‘rights-balancing’ and the relative effectiveness of blocking techniques