In a paper shortly to be published in the New Zealand Universities Law Review, I argue that New Zealand (NZ) should adopt specific legislation granting courts the power to issue injunctions, known as “site-blocking orders”, against internet intermediaries. The relevant intermediaries are typically internet service providers (ISPs). Site-blocking orders require ISPs to block access to sites from which their subscribers can access unlicensed material protected by intellectual property (IP) rights.
In a 2018 Issues Paper, the NZ government suggested that the power to issue such orders might exist under the inherent powers of the NZ High Court. The paper argues that, rather than relying on the court’s inherent powers, the preferable approach would be to adopt specific site-blocking legislation, of the kind that was enacted in Singapore with the Copyright (Amendment) Act 2014.
Two free trade agreements recently entered into by NZ have foreclosed debate as to whether NZ should have a blocking order regime. The IP chapter of the 2022 EU-NZ Free Trade Agreement requires each party to “ensure that the judicial authorities may issue an injunction against an intermediary whose services are used by a third party to infringe intellectual property rights.” Similar language appears in the United Kingdom-NZ Free Trade Agreement, finalised a few months earlier. The trade agreements do not, however, specify how this obligation is to be given practical effect.
The advantage of the Singaporean approach – which, in turn was influential in the enactment of broadly similar provisions adopted in Australia in 2015 – is that the legislation provides detailed guidance as to when a blocking order should be granted, and the kinds of factors decisionmakers should take into account when granting an order. Specifying these kinds of matters in advance should lower the cost and time burdens on litigants. If the matter were left to the inherent powers of the court, litigants would bear the burden of developing the relevant principles themselves.
Legislative scrutiny would also enhance the legitimacy of the site-blocking power. Blocking citizens’ access to online material is a serious matter. The 2011 Report of the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression noted that “[s]tates’ use of blocking or filtering technologies is frequently in violation of their obligation to guarantee the right to freedom of expression.” Many high-profile organisations and institutions have observed that freedom of expression encompasses internet access, including the European Court of Human Rights and the UN Human Rights Council. Privacy rights, the right to a fair trial, and (in the EU context) the right to conduct a business are also implicated. Site-blocking orders are a limitation on fundamental rights – albeit a necessary one, given the industrial scale at which IP rights are infringed via the internet.
The legislative process would provide various stakeholders with an opportunity to engage with the difficult issues that blocking citizens’ access to online material puts at stake. In Australia, the human rights implications of the blocking order power received detailed consideration by the Parliamentary Joint Committee on Human Rights, which concluded that the power was, when compared with other available legal measures, a proportionate response to the problem of online infringement. In NZ, Parliamentary scrutiny of the blocking order power would inevitably engage the New Zealand Bill of Rights Act 1990. In this context, the task of government policy analysts will be to ensure that the legislation contains sufficiently robust checks and balances, such that any limitations on fundamental rights are demonstrably justifiable in a free and democratic society.
Debates over site-blocking orders do not inevitably pitch IP rights against fundamental rights and freedoms. To be sure, site-blocking brings with it the risk of over-blocking – that is, blocking both infringing and non-infringing content – with the risk of unjustifiably limiting citizens’ access to information. At the same time, a blocking order power will enhance other rights – specifically, the rights of authors. No less august document than the Universal Declaration of Human Rights announces everyone’s “right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author”. The International Covenant on Economic, Social, and Cultural Rights includes a similarly worded obligation. Professor Jane Ginsburg and I explore some of the implications of this largely overlooked corner of international human rights law in a recent posting in the “Perspective” series of the Australian and NZ Society of International Law.
As I have discussed elsewhere, the emerging jurisprudence on authors’ human rights indicates that these rights should be given effective and meaningful protection. Arguably, a site-blocking power is a way of providing more effective protection of authors’ human rights to their moral and material interests.
The final suggestion advanced in the paper is that NZ might vest the site-blocking power in an administrative tribunal, such as the Copyright Tribunal, rather than requiring parties to initiate proceedings in the senior courts. In other jurisdictions, there is now a sizable volume of case law exploring the contours of the site-blocking power. A lot of the issues have already been worked through. 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. New Zealand litigants should not, therefore, be required to re-invent the wheel. Given the relatively small size of the local market for creative content, it will be important to keep the costs down. Vesting the site-blocking power in an administrative tribunal might be more suitable for local conditions – especially if, drawing on lessons offered by the Singaporean and Australian experience, decisionmakers were given detailed legislative guidance.
Professor Austin visited the Faculty of Law in September 2023, and taught an intensive module on international copyright law.
Keywords: copyright, site-blocking, New Zealand, intellectual property, remedies
AUTHOR INFORMATION
Professor Graeme Austin
NUS Visiting Yong Shook Lin Professor in Intellectual Property 2023
Chair in Private Law, Victoria University of Wellington
Professor of Law, Melbourne University