SMH Gets It Wrong on Filter Claims

December 11, 2014
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A story in today’s Sydney Morning Herald claimed that I went ‘bananas’ when asked whether the Government’s package to prevent online copyright infringement includes an Internet "filter"

It is wrong on both counts.

I have included the audio from the call below so people can judge for themselves whether I went 'bananas'.  The discussion was frank but far from heated. 

Secondly, there is a question as to what constitutes a filter.  Grubb wrote:

“Turnbull's filter denialism is reminiscent of his defence of Tony Abbott's "no cuts" to the ABC and SBS pledge the night before the election. He eventually came clean, though. It's time for Turnbull to come clean and call his site-blocking regime what it is: a filter.”

But this overlooks some very important legal and technical distinctions between an Internet filter – like the type mooted by Labor when they were in Government – and what we have proposed.

Although there are different types of filters that can be introduced to block content on the Internet, fundamentally they are designed to automatically screen out online material based on its content.  This could be sexually explicit material (parents can use filters on their computers to protect their kids) or it could be a programme that automatically detects and diverts spam email.

There are some important consequences of this.  First, because of the vast amount of data being screened, there was a question as to whether the filtering programs would slow the Internet experience of end users.

Secondly, and most importantly, if a Government determined a set of criteria - types of site, types of content - which would trigger automatic blocking by a filter, there is always a great risk that innocent sites would be blocked without any right of appeal or review.

In the package we announced yesterday, the Government will introduce legislation so that rights holders can seek a court to order an ISP to block overseas hosted websites that can be shown to be primarily for the purpose of facilitating online copyright infringement.   

Similar powers to seek injunctions already exist.  The Copyright Act already provides for the blocking of sites that infringe copyright. In the safe harbour provisions of the Copyright Act, section 116AG(3)(a) provides that for a copyright infringement that occurs in the course of an ISP providing their services a court may grant an order requiring an ISP to “take reasonable steps to disable access to online location outside Australia.”

However, the safe harbour provisions only come into effect when an ISP has been found to be authorising copyright infringement.

The Government’s proposal instead allows rights owners to go to court to have overseas hosted websites whose purpose is to facilitate online copyright infringement blocked, without the lengthy and costly process of proving an ISP has authorised infringement.

Unlike an internet filter, the process would be transparent and independent of government as it would be a decision of a court with all the preotections of due process. The offshore site would be given notice of the application and could, if it wished, appear in the proceedings and oppose the order. The ISP's costs, of course, would have to be covered in the normal way.

So it will be a court, not the Government, that will determine which sites are blocked. Moreover, this is not an automatic process, but determined by a court with all of the normal protections of legal due process. In other words a judge will make the decision, after hearing evidence and argument, not an algorithm in the software operating a router. 

In considering whether to grant an injunction, the court would be required to have regard to the rights of any person likely to be affected by the grant of such an injunction. The court procedures would enable a court to give such directions as it considers appropriate in all of the circumstances.

Similar measures are operating effectively in the United Kingdom and Ireland.

No-one should condone commercial gain from supporting copyright infringement.  We do not object to action being taken against people who sell illegal copies of DVDs.  Disrupting this activity is more challenging on the internet as the activity may be taking place outside Australia.  Were it occurring in Australia the rights holders could take legal action against the website.  What we have proposed is a transparent mechanism available to right holders where this activity is occurring overseas.

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