The Abbott government has moved to crack down on illegal downloading, saying internet service providers (ISPs) will be forced to take “reasonable steps” to prevent it – including possible sanctions against offending customers.



The proposals, contained in a discussion paper, are likely to be controversial with Australian consumers who are among the world’s most prolific illegal downloaders of popular shows such as Game of Thrones and Breaking Bad.

The government says it has to toughen the law – possibly forcing ISPs to punish customers who repeatedly infringe copyright – after a 2012 high court decision in which Village Roadshow and other companies unsuccessfully argued that the ISP iiNet had not taken “reasonable steps” to stop the downloading and sharing of films and TV shows.

The discussion paper was issued by attorney general George Brandis and communications minister Malcolm Turnbull who are understood to have had differing views about the practicality of taking a big stick approach to illegal downloading.

Two years ago Turnbull said the high court had made the right decision.

“It is very, very, very difficult – if not impossible – for someone that is just selling connectivity, just providing bandwidth, to then be monitoring what people are doing,” Mr Turnbull said then.

Now the government discussion paper he has issued with Brandis says: “The government believes that even where an ISP does not have a direct power to prevent a person from doing a particular infringing act, there still may be reasonable steps that can be taken by the ISP to discourage or reduce online copyright infringement.”

“Extending authorisation liability is essential to ensuring the existence of an effective legal framework that encourages industry cooperation and functions as originally intended, and is consistent with Australia’s international obligations,” it says.

The paper also proposes that film or television rights holders could be able to block access to overseas websites, like file sharing sites, which have a dominant purpose of infringing copyright, “without the need to establish that a particular ISP has authorised an infringement.”

And it says copyright holders can list a number of ISPs in any court injunction to reduce the opportunity for people to access blocked sites by switching ISPs.

“Such a power would clarify that a rights holder may list a number of ISPs as respondents to an application for injunctive relief. This would reduce the opportunity for people to ‘evade’ the operation of such orders by switching ISPs. The websites would need to be blocked by carrier level ISPs at the wholesale level, ensuring that resellers would be unable to make blocked sites available to subscribers,” it says.

And it says film and television companies could be required to impose sanctions on customers who repeatedly download illegally.

In the first instance the government is calling for submissions, and says it wants the industry to reach agreement on what would constitute ‘‘reasonable steps’’ by ISPs, despite the gulf between the views of the ISPs and the film and television providers.

John Stanton, chief executive of the Communications Alliance which represents ISPs, said his organisation did not condone online copyright infringement, but did not think the government’s plan was practical.

“We do not share the view in the discussion paper that the High Court’s decision in Roadshow Films Pty Ltd v iiNet Ltd (April 2012) undermines Australia’s international obligations, nor that there is any obligation in Australia’s free trade agreements that means the Copyright Act must be amended to extend authorisation liability,” he said.

He said there had to be some system of independent oversight before ISPs were forced, in response to third party allegations, to impose sanctions on their customers who were accused of infringing copyright.

And he said the rights holders and government had to do more to make sure that consumers could access lawful, affordable content when they wanted it.

When Game of Thrones’ fourth season premiered in April, more Australians illegally downloaded the program than residents of any other country. Consumer group Choice said at the time that Foxtel itself was in part to blame.

“It expects people to pay for a whole range of products when they may want [just] one. You’re getting Real Housewives of every city, rather than just Game of Thrones, which you want,” Choice spokeswoman Erin Turner told the ABC. Foxtel said it had introduced more flexible ways to pay for its content.

Greens spokesman Scott Ludlam questioned what had happened to Turnbull’s previous position: “Just two years ago, Turnbull said the high court came to “the right decision” when it found that ISPs such as iiNet were not responsible for their users pirating film and TV content on the Internet. [Now] Turnbull puts his name to a discussion paper which openly canvasses overturning the judgment.

“Two years ago Turnbull said it was ‘very, very, very difficult, if not impossible’ for ISPs to monitor what their customers were doing online. [Now] he … discusses forcing ISPs to block websites, send users warning notices and even limit their broadband connections if they are suspected of infringing copyright.”