The liability of internet intermediaries, particularly Internet Service Providers (‘ISPs’), for the unlawful online actions of third party users is a persistent theme and problem of cyberlaw. The creation of an intermediary liability regime involves balancing the benefits intermediaries provide in facilitating access to internet content on the one hand, with the advantages of leveraging intermediary control over access on the other. Intermediaries are targets for attempts to control unlawful end-user activities as bringing actions against individual users is expensive, while regulating access via intermediaries is more cost-effective. Imposing liability on intermediaries can, however, have significant unwelcome effects, or ‘collateral damage’, especially on the rights to freedom of expression and privacy of end-users.
The most recent addition to intermediary liability law is the jurisdiction to award injunctions against intermediaries to block internet access in order to prevent online copyright infringements. In Australia, section 115A of the Copyright Act 1968 (Cth) (‘the Australian Act’), which provides for injunctions against intermediaries that provide access to online locations outside Australia, came into effect from 27 June 2015; and the first injunctions were awarded by Nicholas J of the Federal Court in December 2016. Since then, further orders have been made against the KickassTorrents site and an additional 66 infringing websites. The jurisdiction to award blocking injunctions was inspired by section 97A of the Copyright, Designs and Patents Act 1988 (UK) c 48 (the ‘CDPA’), while the drafting was influenced by provisions of the Copyright Act (Singapore, cap 63) (‘the Singaporean Act’), introduced in 2014.
This article identifies and analyses the limits on the new statutory jurisdiction to grant no-fault injunctions. In particular, it examines the potential role of the proportionality principle, as applied under European Union (‘EU’) law, to set appropriate limits on the award of blocking orders. In this, the article is agnostic on the overall effectiveness of blocking injunctions. It is premature to form a judgment on whether targeted blocking, in isolation or as part of broader strategies, will have an impact on the level of online infringements. Instead, the article focuses on issues in interpreting and applying the jurisdiction, and particularly on establishing principled legal constraints on the discretion to award injunctions and on the form of blocking orders.