Last week, the Federal Court of Australia ordered internet service providers (ISPs) to block access to five major torrent websites. This was a result of court action taken by rights holders Foxtel and Village Roadshow in their desperate fight against piracy. But here’s the thing: it’s incredibly easy to bypass any site-blocking implemented by ISPs. So is it legal for Australians to access the blocked websites locally? Let’s find out.
Federal Court ordered Australian ISPs to block The Pirate Bay, Torrentz, TorrentHound, IsoHunt and SolarMovie under Section 115A of the Copyright Act 1968 (Cth). An amendment introduced to the Copyright Act last year allows copyright holders to apply for an injunction against a carriage service provider (in this case, ISPs) to block access to websites that are mainly used for pirating TV shows and movies.
It’s worth pointing out that torrenting itself is perfectly legal. In fact, some open source software and Linux distros are distributed through torrents. But is it legal to access websites that have been blocked by this Federal Court injunction?
Oliver Smith, intellectual property and technology lawyer at law firm Bird & Bird, told Lifehacker Australia:
In short: it is legal to access (that is, visit) an ISP-blocked website. There are no Australian laws that currently prevent an individual from accessing a website purely on the basis that the website is blocked by an internet service provider or ISP.
“Similarly, the mere use of a VPN or similar to access an ISP-blocked website is not illegal – it is what you do when you are on the website that could be illegal (such as downloading or streaming copyright-protected content without paying for it).
A lot of workplaces let their employees connect to the corporate network securely while working remotely. VPNs are also used by consumers who would like to keep their online activities private.
Smith used the analogy of driving a car to a bank for a robbery:
The act of driving the car to the bank is not illegal (assuming of course you are licensed and are not speeding or running red lights). Robbing the bank is the part that is illegal.
Does This Have Anything To Do With The ACMA ‘Blacklist’?
Just to provide some clarity, the Federal Court’s injunction to block the torrent sites are separate to “blacklisted” content in Australia.
Under the Broadcasting Services Act 1992 (Cth), the Australian Communications and Media Authority (ACMA) has the power to order the removal of illegal and prohibited content that is hosted within Australia. This can include “child abuse material, content that advocates the doing of terrorist act and content that promotes or incites crimes or violence as illegal”.
The ACMA has less power when it comes to content that is hosted overseas but it does maintain a “blacklist” of websites that have been known to carry illegal and prohibited material. The ACMA can’t exactly mandate the blocking of those websites but does provide the blacklist to ISPs. Customers can then opt into using an internet filter to avoid accessing those sites.
In 2009, the Federal Government wanted the ACMA to create a secretive restricted content list as part of plans to implement a mandatory internet filter for “illegal” content. But those plans were scraped after widespread backlash from the public as it was perceived as internet censorship; there were fears that the restricted content list could grow to encompass non-illegal material.