by Andrew Brown QC
The idea that site blocking injunctions may be sought from the High Court sometimes draws negative reactions from internet commentators and insiders. There is in fact a strongly arguable basis for obtaining such an injunction in New Zealand. Similar such injunctions have been granted in many other countries worldwide and have proven to be effective tools against illegal file sharing and streaming of illegally uploaded content including music and films.
Late last year, opponents described an intended site blocking injunction as “bonkers”, “unfathomable in 2017” and “something you would expect in North Korea”. Claims were also made by tech commentators that such orders are “censoring the internet” or “a fool’s errand”.
Such shrill reaction is simply out of step with what has been happening internationally over the last five years and also practical reality.
Although the 2008 Copyright Amendment Act granted certain “safe harbour” provisions to internet service providers (ISP’s), Parliament expressly preserved rights to seek injunctive relief in certain circumstances. It is certainly well arguable that the New Zealand High Court does have power to grant site blocking injunctions. In the UK their High Court has held that the Court’s power to grant an injunction “in all cases where it appears just and convenient to do so” justifies such site blocking injunctions – even extending to sites that sell only counterfeit goods. Our New Zealand courts have the same inherent powers.
Further, such injunctions impose no liability on internet service providers. Rather they simply recognise that orders requiring ISPs to block certain sites are the only sensible and logical way in which illegal streaming and file sharing sites (all of which are located outside New Zealand) can be effectively blocked.
Nor is granting such an injunction striking out where no country has gone before. Already courts and official bodies in 27 countries worldwide have granted orders requiring ISPs to block users’ access to copyright infringing sites. These countries include our near neighbour Australia, the UK, most European countries and many Asian countries such as Singapore, South Korea, Malaysia and Indonesia. It would appear that New Zealand is indeed out of step, but not in the way internet commentators and ISP insiders have claimed.
Since the enactment in 2015 of legislation specifically allowing rights holders to seek blocking orders in Australia, the Federal Court has blocked more than 65 sites and more than 340 domains. The Federal Court noted in the most recent case in August this year that the sites being blocked “operated with a blatant disregard for the rights of copyright owners.”
Globally more than 2,800 unique domain names providing access to copyright protected content have been blocked. Some 1,800 of these blocked sites were dedicated to or contained illegal music. The sites which have been blocked overseas are all sites where users have illegally uploaded music, film or other creative content without the copyright owners’ consent. Because of the extensive safeguards adopted when granting such injunctions there is little likelihood of the courts interfering with legitimate websites.
Blocks have been implemented by mobile network operators in Argentina, Belgium, Finland, India, Ireland, Italy, Malaysia and South Korea. One of the most notorious illegal sites, the Pirate Bay, has been ordered to be blocked in 18 countries including in Australia, Malaysia, Indonesia and South Korea. Should rights holders have taken action against the Pirate Bay rather than seeking to block the site. In fact they did, successfully, with Swedish courts finding the Pirate Bay criminally and civilly liable resulting in prison sentences and multi-million dollar fines for its operators. But such remedies are clearly not sufficient in today’s digital world where the Pirate Bay currently ranks as the 107th most popular site in the world, and the 22nd most popular site in New Zealand.
The blocking technique almost universally used in site blocking injunctions (and the method adopted by the Australian Federal Court) is DNS name blocking. It does not require any additional equipment or hardware on the part of the ISP. It has proved an effective mechanism. When a DNS query requesting the IP address associated to the domain name of a given webpage is received by the ISP’s DNS server, this server can be configured to discard the query and not respond. It is also usual for the court order to provide for a message to be posted advising users that the webpage has been blocked by court order.
Site blocking is not a silver bullet to stop piracy completely. It will always be possible for dedicated users to bypass these measures. But it is perhaps the most effective bullet for rights holders in New Zealand seeking to prevent widespread infringement of their content.