Parliament's human rights committee questions anti-piracy bill

Is blocking access to websites a proportionate response to online piracy?

The latest report of the Parliamentary Joint Committee on Human Rights raises concerns about the proportionality of proposed government legislation aimed at blocking Australian access to piracy websites.

The government's Copyright Amendment (Online Infringement) Bill 2015 will allow rights holders to apply for court injunctions that will force ISPs to block access to overseas-based websites that facilitate online piracy.

However, a report produced by the Parliamentary Joint Committee on Human Rights Committee raises concerns about the bill.

The bill "engages and limits the right to freedom of opinion and expression" but its statement of compatibility with human rights, contained within its explanatory memorandum (PDF), "does not provide sufficient information to establish that the bill may be regarded as proportionate to its stated objective (that is, the least rights restrictive alternative to achieve this result)," states the report.

"The committee therefore seeks the advice of the Attorney-General as to whether the bill imposes a proportionate limitation on the right to freedom of opinion and expression."

The bill's explanatory memorandum says that it is "difficult to take action against the operator of an online location that is operated outside Australia." However it doesn't provide examples how "direct action against internationally operated online locations would be a difficult mechanism for combating copyright infringement," the human rights report states.

"The committee notes that the proponent of the legislation has not explained why other less rights restrictive methods of reparation for copyright owners in the case of copyright infringement would be insufficient in achieving the desired objective," the report states.

Similarly the report calls for the attorney-general to provide advice as to whether the bill provides "a proportionate limitation on the right to a fair hearing".

Under the bill, the operator of a website (or 'online location' in the language of the proposed legislation) that will potentially be blocked is not automatically a part of Federal Court proceedings.

"[T]he committee notes that it is up to the court's discretion to grant the operator access as a party to the proceedings, and is not necessarily guaranteed," the report states.

"This ability is dependent on the operator of the online location being notified of the application, which the statement of compatibility notes may not be possible due to difficulties in ascertaining their identity. Further, individuals that use the online locations for legitimate or authorised use (some of whom may have contractual rights with the online location to store or distribute content) would not have the ability to be party to proceedings."

The website-blocking bill is currently the subject of an inquiry by the Senate Standing Committees on Legal and Constitutional Affairs.

The reporting date for the inquiry, which has held only a single public meeting attended by two senators, has been pushed back from yesterday until 29 May.

Read more: Website-blocking inquiry pushes back reporting date

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