by Graeme Austin — 24 March 2023
It’s time for the New Zealand Parliament to legislate for site-blocking orders says New Zealand legal academic, Graeme Austin.
Professor Austin makes this argument in a paper to be published later this year.
As Austin notes, the 2022 EU and UK trade agreements with New Zealand have foreclosed debate over whether New Zealand should have site-blocking orders. Both agreements require us to have them.
But these agreements don’t say how New Zealand law should give effect to these requirements.
In a 2018 Issues Paper, the government suggested granting blocking orders is already among the inherent powers of New Zealand’s High Court. That may be true, says Austin, but relying on those powers would require applicants to incur the expense of having lawyers work out what the relevant legal principles are.
In Aotearoa| New Zealand blocking orders raise difficult issues under the Bill of Rights Act, under tikanga principles, and under international law. But, as Austin notes, blocking orders are available in over forty countries. “There’s a way through all these issues. And the litigants shouldn’t incur all the costs of working them out.”
Austin suggests that Parliament should engage with the issue, and provide detailed guidance for the applicants, the ISPs, and the final decision makers.
The changes made to Australian copyright law in 2015 and 2018 are a good model. The gives Australian judges detailed guidelines on what to consider before granting an order. In Australia, site-blocking has become an established part of the copyright law ecosystem.
“We’d have to adapt those provisions in the light of local circumstances, but they’re a good start.”
Blocking citizens’ access to online material raises issues for internet users’ rights and freedoms. These are serious concerns, says Austin, but so too is the industrial scale at which copyrights are violated. Overseas case law shows that there is now a broad consensus that, managed carefully, blocking orders are a proportionate response to the problem of online copyright piracy.
“A lot of water has now flowed under the site-blocking order bridge and a lot of the issues have been worked through,” says Austin. The question now is how Aotearoa|New Zealand can learn from that experience. Litigants here shouldn’t have to reinvent the wheel.”
“Detailed legislative guidelines are the way to go.”
The legislative process would also give everyone involved a chance to have their say about when granting a blocking order would be appropriate, and when there’s a risk of overreach.
Austin’s paper also raises the question whether the power to grant orders should be vested in an administrative body, such as the Copyright Tribunal. Given the size of the local market for creative content, a more cost-effective approach might be appropriate. “I wouldn’t be suggesting this if there wasn’t so much overseas experience with site-blocking orders. But if Parliament provided some careful guidance, we might not need this to go to the High Court every time.”
Graeme Austin is Chair of Private Law at Te Herenga Waka|Victoria University of Wellington, and a Professor of Law at Melbourne University.
The paper is available through this SSRN site