We argue that safeguards are necessary to ensure human rights are adequately protected. All systems of blocking access to online content necessarily raise difficult and problematic issues of infringement of freedom of speech and access to information. Given the importance of access to information across the breadth of modern life, great care must be taken to ensure that any measures designed to protect copyright by blocking access to online locations are proportionate. Any measures to block access to online content must be carefully tailored to avoid serious and disproportionate impact on human rights.
This means first that the measures must be effective and adapted to achieve a legitimate purpose. The experience of foreign jurisdictions suggests that this legislation is unlikely to be effective. Unless and until there is clear evidence that the proposed scheme is likely to increase effective returns to Australian creators, this legislation should not be introduced.
Second, the principle of proportionality requires ensuring that the proposed legislation does not unnecessarily burden legitimate speech or access to information. As currently worded, the draft legislation may result in online locations being blocked even though they would, if operated in Australia, not contravene Australian law. This is unacceptable, and if introduced, the law should be drafted so that it is clearly limited only to foreign locations where there is clear and compelling evidence that the location would authorise copyright infringement if it were in Australia.
Third, proportionality requires that measures are reasonable and strike an appropriate balance between competing interests. This draft legislation provides few safeguards for the public interest or the interests of private actors who would access legitimate information. New safeguards should be introduced to ensure that the public interest is well represented at both the stage of the primary application and at any applications to rescind or vary injunctions.
We recommend that:
- The legislation not be introduced unless and until there is compelling evidence that it will have a real and significant positive impact on the effective incomes of Australian creators.
The ‘facilitates an infringement’ test in s 115A(1)(b) should be replaced with ‘authorises infringement’.
The ‘primary purpose’ test in s 115A(1)(c) should be replaced with: “the online location has no substantial non-infringing uses”.
An explicit role for public interest groups as amici curiae should be introduced.
Costs of successful applications should be borne by applicants.
Injunctions should be valid only for renewable two year terms.
Section 115A(5) should be clarified, and cl (b) and (c) be removed.
The effectiveness of the scheme should be evaluated in two years.
Read the full submission here.