If someone is streaming your films, hosting your software without a licence, or republishing your written work on a foreign website you have no hope of suing directly, Australia's site-blocking regime is the mechanism that was built for that problem. Rather than chasing an operator who may be anonymous and offshore, rights holders can go to the Federal Court and force Australian internet service providers (ISPs) to cut off access to the infringing site entirely — before a single user in Australia can reach it.
This article explains what site-blocking is, the legal test that must be satisfied under s 115A of the Copyright Act 1968 (Cth), how the scheme has been updated since it launched, and what a business with a copyright problem should understand before seeking advice.
What site-blocking actually does
A site-blocking injunction is a court order directed at an Australian carriage service provider — a Telstra, Optus, TPG, or similar ISP — requiring it to take reasonable steps to disable access to a specific online location. The order targets the pipe, not the pirate. The operator of the infringing site does not need to be a party to the proceedings, and the site does not need to be taken down globally. Australian users simply can no longer reach it through their ordinary internet connection.
The mechanism addresses a straightforward jurisdictional problem: a copyright owner holds rights enforceable in Australia, but the infringer is running a website from a server located overseas, often behind anonymised hosting, and is not amenable to Australian court process. The ISP, by contrast, is incorporated here, subject to Australian law, and controls the connection.
Practically, ISPs implement blocking in one of several ways — DNS blocking (redirecting domain-name lookups), IP address blocking, or URL blocking — depending on what the court order specifies. Each method can be circumvented by a determined user with a VPN, which is a known limitation of the scheme, but the orders are not required to be foolproof to be proportionate.
The three-limb test under s 115A(1)
Section 115A was inserted into the Copyright Act 1968 (Cth) by the Copyright Amendment (Online Infringement) Act 2015 (Cth) and came into effect on 27 June 2015. A copyright owner or exclusive licensee may apply to the Federal Court for a blocking injunction if — and only if — three things are established:
- The online location is outside Australia. The site must be hosted or otherwise operated outside Australian territory. Since the 2018 amendments (discussed below), there is a rebuttable presumption that the location is outside Australia unless the contrary is established — this reverses the burden and streamlines uncontested cases.
- The online location infringes, or facilitates infringement of, the copyright. The content itself violates the applicant's copyright, or the site enables others to do so — for example by indexing torrents or hosting links to infringing streams.
- The primary purpose or primary effect of the online location is to infringe, or to facilitate infringement of, copyright. This is the decisive limb. A site cannot be blocked simply because some infringing content appears on it. The infringement must be the reason the site exists, or the dominant effect of how it operates. A general-purpose file-hosting service that happens to carry some infringing content does not meet this test. A site whose catalogue is overwhelmingly pirated films, or that organises itself explicitly around circumventing rights holders, does.
Where those three elements are satisfied, the court still has a discretion about whether to grant the order and on what terms.
Factors the Federal Court considers
In exercising its discretion, the court may take into account:
- the flagrancy of the infringement, or how openly the site disregards copyright
- whether the site makes available directories, indexes, or categories whose purpose is to facilitate infringement
- whether the operator has demonstrated a disregard for copyright generally (for example, by resuming operations after receiving takedown notices)
- whether equivalent blocking orders have already been made against the same site in other countries
- whether disabling access is a proportionate response given the likely impact on legitimate users
- the public interest
The court is not required to consider all of these factors in every case, and the weight given to each will vary. Where a site is a well-known, high-volume piracy platform with a history of evading takedowns, courts have moved relatively quickly.
How the scheme has evolved since 2015
The original 2015 scheme had two significant gaps that rights holders identified almost immediately.
Search engines were not covered. Even if an ISP blocked access to a pirate site, a user could still find mirror sites through a Google search. The Copyright Amendment (Online Infringement) Act 2018 (No. 157 of 2018) extended s 115A to require online search engine providers to take reasonable steps not to provide search results that refer users to a blocked online location. This means a single injunction can now reach both the connection and the discovery pathway.
Mirror sites required separate proceedings. The original scheme required a fresh court application each time a blocked site re-emerged at a new domain or IP address. The 2018 amendments introduced a dynamic injunction mechanism: once a blocking order is in place, the copyright owner and ISP can agree — without returning to court — that specific new pathways (new domains, URLs, or IP addresses) are providing access to the same blocked location, and extend the order to those new pathways administratively. This materially reduces the cost and delay involved in keeping pace with operators who constantly shift domains.
The primary purpose test was broadened. The original test asked only whether the primary purpose of the site was to infringe. The 2018 amendment expanded this to "primary purpose or primary effect." This matters for sites whose operators might claim a legitimate purpose but whose practical effect is overwhelmingly to enable infringement. The shift lowers the evidentiary burden on applicants in those cases.
What the first blocking orders looked like in practice
The first site-blocking orders under s 115A were made in Roadshow Films Pty Ltd v Telstra Corporation Ltd [2016] FCA 1503 on 15 December 2016. Roadshow, Disney, Twentieth Century Fox, Paramount, Columbia, Universal, Warner Bros, and Foxtel brought proceedings against Telstra, Optus, TPG, and M2 seeking orders to disable access to five sites: The Pirate Bay, Torrentz, TorrentHound, IsoHunt, and SolarMovie.
Nicholas J found that each site had a primary purpose of infringing or facilitating infringement of copyright and that the applicants' films and television programs were clearly the subject of that infringement on a widespread scale. His Honour also built in a mechanism allowing orders to be extended to new domains associated with the same sites, anticipating the mirror-site problem before the 2018 statutory fix was available.
The case confirmed that ISPs could not require applicants to fund the set-up costs of implementing blocks, characterising those costs as a general cost of doing business.
Where businesses commonly go wrong
Rights holders who discover offshore piracy sometimes make one or more of the following mistakes:
- Waiting too long. Site-blocking applications take time. While proceedings are progressing, infringing content continues to circulate and mirror sites proliferate. The sooner a rights holder acts, the more contained the problem typically is.
- Targeting the wrong respondent. The mechanism targets ISPs, not the offshore operator. If your legal adviser is focused on suing the site directly without also considering an ISP injunction, you may be pursuing the harder and more expensive path.
- Assuming a single order is enough. Even with dynamic injunction provisions, mirror sites require monitoring and administrative follow-up. A one-and-done mentality leaves the door open.
- Ignoring the primary purpose threshold. Not every offshore site that carries some of your content meets the test. Before committing to proceedings, a realistic assessment of whether the site would satisfy the primary purpose or primary effect limb is essential.
How Artificer Legal can help
Site-blocking applications involve both litigation strategy and ongoing enforcement. At Artificer Legal, we advise rights holders on:
- Assessing whether a blocking application is appropriate — reviewing the infringing site against the three-limb test and the discretionary factors before you commit to proceedings
- Preparing and filing the Federal Court application — drafting the originating application, affidavit evidence identifying the infringing location, and submissions addressing proportionality and public interest
- Coordinating with ISPs — once orders are made, managing the administrative process of extending orders to mirror sites and new pathways under the dynamic injunction mechanism
- Advising on complementary steps — site blocking sits alongside other enforcement tools such as takedown notices, domain dispute proceedings, and civil claims against Australian-based infringers where they can be identified
The regime has matured considerably since 2015. With the right advice, a rights holder who identifies a qualifying offshore site can move efficiently through the Federal Court process and obtain orders that have real teeth.
Key points
Australia's site-blocking regime under s 115A of the Copyright Act 1968 (Cth) allows copyright owners to obtain Federal Court orders requiring ISPs to disable access to offshore infringing sites, and — since the 2018 amendments — requiring search engines not to surface those sites in results.
The decisive question at the threshold is whether the site's primary purpose or primary effect is to infringe or facilitate infringement of copyright. A site that merely hosts some infringing material does not qualify; a site whose reason for existing is piracy almost certainly does.
The first orders were made in Roadshow Films Pty Ltd v Telstra Corporation Ltd [2016] FCA 1503, targeting The Pirate Bay, Torrentz, TorrentHound, IsoHunt, and SolarMovie. The 2018 amendments subsequently closed the two largest gaps in the original scheme: search engines are now within reach, and mirror sites can be caught by extending existing orders without fresh proceedings.
For businesses holding Australian copyright in content that is being infringed offshore, a site-blocking injunction is a practical and well-tested enforcement option. Contact Artificer Legal to discuss whether your situation qualifies.