Scott Ludlam (WA, Australian Greens) Share this | Hansard source

I will move to my second amendment, which I addressed in passing on my way through the second reading debate. Amendment (2) on sheet 7710 changes the definition of sites targeted by the bill to specify that the sites must be flagrantly infringing copyright. The intention of the amendment is to apply a higher test—a steeper threshold—by which the courts would assess whether a site was infringing copyright. The word 'flagrancy' has been used elsewhere in the bill; it is used extensively in the explanatory memorandum. But it is not a determination that the court will be making—as to whether a site is or is not flagrantly breaching copyright. The intention here, I hope, is reasonably transparent and clear to senators—that is, we are trying to minimise the risk of, effectively, collateral damage—given how broadly the term 'facilitating' may well be taken to be read in the context of this—to sites which have very little to do with copyright infringement but which may be caught up in this net; particularly once these sorts of court orders become routine. Once rights-holders get good at this and once ISPs have given up defending these actions in court, and once these orders become much more routine—which is, I fear, what may occur—we are going to need to maintain a very high threshold test for whether courts will knock websites over.

Currently, the bill would require courts to consider the flagrancy of the copyright infringement taking place on any specific website proposed to be blocked. However, it would not require the website to be flagrantly infringing copyright for it to be blocked. In other words, we are trying to strengthen the test against the risk of over-blocking by the filter. What our amendment does, specifically, is change the flagrancy requirement from being a consideration—that is, from being one of the things that the court should be required to keep in mind—to being the test that should be required and that should be foremost in the court's consideration. We believe that this is much easier for courts to consider because it sets a very simple threshold bar. If websites are flagrantly infringing copyright, they will meet the test. Even on a plain English reading of that word, it would, I think, give some of those who are opposed to the bill some comfort that it would only be narrowly targeted. If the website is not flagrantly infringing copyright, then it probably should not be knocked off the air by such a court order. That is the clarity of the test that we are trying to apply.

Senator Fierravanti-Wells, your briefing notes no doubt say that that is something that the courts would be required to bear in mind—it would be part of the criteria; it would be one of the things they are considering. We do not think it should be possible for a website that is not flagrantly infringing copyright to be, effectively, knocked off the net by an order of this type. That is why we are bringing this amendment forward.