Site Blocking Global Best Practices
サイト・ブロッキングの法制度 グローバル・ベスト・プラクティス：シンガポールを例にMichael Schlesinger"Our country's content industry could be denied a future if manga artists and othercreators are robbed of proceeds that should go to them.”
Prime Minister Shinzo Abe, April 2018
I.

INTRODUCTION

Recently, Japan has been inundated with a proliferation of overseas or domestic websites andservices engaging in or facilitating online copyright infringement.1 In May 2018, the top
100 piracy sites (for motion pictures, not including anime (アニメ) or manga (漫画))garnered over 2 Billion (with a “B”) monthly visits worldwide, while in Japan alone, suchsites attracted over 50 million monthly visits and over 200 million monthly page views in May
2018 (SimilarWeb). These mainly foreign-based sites profit off valuable creative content –motion pictures, television programming, anime (アニメ), manga (漫画), music, games,
software, and other copyright materials – stifling the legitimate creative marketplace forJapanese and foreign creators alike. Such sites are part of a larger trend of legitimate digitalplatforms being overrun by bad actors, and a recent study finds consumers want government
leaders to take a more hands-on approach to combatting them.2 Governments recognize thatthe use of the Internet for illegal activities represents an increasing drain on the legitimate
digital economy. For example, use of copyright infringing websites represents a shockingly
large percentage of all Internet traffic – 23.8% of all Internet bandwidth in North America,
Europe, and the Asia-Pacific.3 Another study demonstrates that, in the absence of piracy, box
office revenues would increase by 14 to 15 percent.4 Users who are free-riding on
unauthorized content also get more than they bargained for, as recent studies have shown thataccessing primarily infringing sites often leads to users unintentionally downloading
malware5 or being exposed to high-risk advertising.6

1
Motion Picture Association (MPA), Japan’s Piracy Landscape 2016 (on file with the Japan International Motion Picture Association,
JIMCA), showing that there were more than 273 million page views by Japanese users to the top five piracy websites over a three month
period in 2016.
2
Digital Citizens Alliance, Trouble in Our Digital Midst, June 2017, at
http://www.digitalcitizensalliance.org/clientuploads/directory/Reports/Trouble-in-Our%20Digital-Midst%20Report-June-2017.pdf.
3David Price, Sizing the Piracy Universe, NetNames Envisional, September 2013,https://www.netnames.com/insights/whitepapers/2016/sizing-the-piracy-universe/.
4
Liye Ma, Alan Montgomery, Michael D. Smith, The Dual Impact of Movie Piracy on Box-Office Revenue: Cannibalization and Promotion(2016), at https://ssrn.com/abstract=2736946.
5This study found that one out of every three content theft sites exposed users to malware and Internet users who visited content theft sites
were 28 times more likely to get malware from these sites than from mainstream websites or licensed content providers. Digital Citizens
Alliance, Digital Bait: How Content Theft Site and Malware are Exploited by Cybercriminals to Hack into Internet Users’ Computers andPersonal Data, December 10, 2015, at https://media.gractions.com/314A5A5A9ABBBBC5E3BD824CF47C46EF4B9D3A76/0f03d298aedf-49a5-84dc-9bf6a27d91ff.pdf.
6This study found that 94% of the advertisements found on the most popular piracy sites in Thailand were “high risk,” defined asadvertisements promoting goods and services that fall outside of the legitimate economy, and which in many cases were illegal in Thailand.
Paul A. Watters, The Impact of High Risk Advertising on Thai Social Values: The Role of Piracy Websites, March 21, 2015, at
http://ictlawcenter.etda.or.th/files/files/Thailand_Report_V4_CLEAN.pdf.

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The large amount of infringing traffic can tax ISPs’ bandwidth capacities, interfere with theirown normal business models, and make their platforms less secure.7 As a result, ISPs
increasingly recognize that taking reasonable steps to disable access to primarily copyright
infringing websites – so-called site blocking – may help them support their own businessmodels, assist in the fight against piracy,8 and that properly implemented, such a remedy will
not affect access to legitimate sites, nor will it result in degradation in their service
quality.9As a result, it is not surprising that ISPs are increasingly taking a neutral or positive
position in their approach to site blocking. Note, for example, that Danish ISPs have taken acooperative and positive approach to the issue.10 In Australia, Optus have chosen a “landingpage” for sites blocked in that country that invites users to head to an educational page about
legal options for content.
Governments worldwide increasingly recognize that site blocking is an effective andnecessary remedy in order to combat increasing copyright infringement online. They
conclude such infringements are increasingly occurring as the result of offshore operators who
intentionally hide and operate offshore, making domestic enforcement difficult or impossible.
In such instances, which now make up the majority of piracy activities, service providers andintermediaries are the ones best positioned to take reasonable steps to reduce such infringing
activities. It is not surprising that site blocking has been adopted by 45 other countries aroundthe world. Site blocking is by no means a new remedy,11 as ISPs and governments have usedsite blocking12 to combat other illegal activities such as child pornography and exploitation,13
malware,14 investment fraud,15 online gambling,16 pornography,17 prostitution,18 terrorism,19
7

The Straits Times, 1 in 2 Singaporeans Download Illegal Music, Videos: Poll, March 19, 2014, http://news.asiaone.com/news/digital1/1-2singaporeans-download-illegal-music-videos-poll#sthash.9vfMmqkr.dpuf. In this piece Ms. Tan Ying Zh of StarHub Singapore noted theneed to reduce the incentive for consumers to choose piracy and decried “illegal websites which do not respect the intellectual property
rights of content owners and are not obligated to improve their quality of service for their viewers.”
8
Irene Tham, Proposed Copyright Law Aimed at Piracy Websites Gets Thumbs Up, The Straits Times, July 3, 2014.
http://www.straitstimes.com/singapore/proposed-copyright-law-aimed-at-piracy-websites-gets-thumbs-up.
9
Irene Tham, Goodbye, Illegal Downloads?, The Straits Times, July 11, 2014, http://www.straitstimes.com/singapore/goodbye-illegaldownloads.
10
The Telecom Industry Association Denmark (TIA) announced adoption on December 12, 2016, of a Code of Conduct ('CoC'), the objectof which is to simplify and improve the efficiency of the implementation of decisions on DNS blocking.
11
Site blocking dates back to the beginning days of the Internet. For example, in the UK, early developments led to actions on the part of ISPs
to block access to content deemed illegal in that country at the time, in lieu of government intervention in the form of police action to hold
ISPs accountable for illegal content or legislation to censor illegal content. Wikipedia, Internet Watch Foundation, citing Alan Travis, Boundand Gagged: A Secret History of Obscenity in Britain (2000), https://en.wikipedia.org/wiki/Internet_Watch_Foundation.
12
In more recent times, governments readily follow tracked lists of illicit content, and have turned to website blocking to apply existing andnew legislation to a range of legitimate public policy goals that involve the Internet, including child pornography. Nigel Cory, How Website
Blocking Is Curbing Digital Piracy Without “Breaking the Internet,” Information Technology & Innovation Foundation (2016),
https://itif.org/publications/2016/08/22/how-website-blocking-curbing-digital-piracy-without-breaking-internet.
13
For example, Interpol keeps track of a “worst of” list of domains containing child sexual abuse material that are established and used
exclusively for this purpose and do not have any legal content; many governments, based on this list, hold ISPs operating in their countries
responsible to ensure they are taking appropriate steps to disable access to such sites. Interpol, Access Blocking (2018),
https://www.interpol.int/Crime-areas/Crimes-against-children/Access-blocking/The-INTERPOL-%22Worst-of%22-list.
14
Claire Reilly, AFP Using Site Blocking Laws to Target Malware, CNet, October 22, 2014, http://www.cnet.com/au/news/afp-using-siteblocking-laws-to-target-malware/.
15
Josh Taylor, FOI Reveals ASIC's IP-Blocking Requests, ZDNet, July 1, 2013, http://www.zdnet.com/article/foi-reveals-asics-ip-blockingrequests/.
16
Media Development Authority (MDA) (Singapore, Approach to Regulating Content on the Internet (2016),
http://www.mda.gov.sg/RegulationsAndLicensing/ContentStandardsAndClassification/Pages/Internet.aspx.
17
Deccan Chronicle, Banned: Complete List of 857 Porn Websites Blocked in India, January 10, 2016 (accessed June 12, 2017),
http://www.deccanchronicle.com/150803/nation-current-affairs/article/porn-ban-complete-list-857-porn-websites-blocked-india.
18
The Times of India, Have Blocked 3,000 Porn Sites, Government Tells Lok Sabha, March 30, 2017,
http://timesofindia.indiatimes.com/india/have-blocked-3000-porn-websites-government-tells-lok-sabha/articleshow/57902512.cms.
19
Danish Ministry of Justice, Strengthened Efforts to Combat Terrorist Propaganda to Combat Radicalization, January 12, 2017,
http://www.justitsministeriet.dk/nyt-og-presse/pressemeddelelser/2017/skaerpet-indsats-mod-terrorpropaganda-skal-forhindre; Juliette
Garside, Ministers Will Order ISPs to Block Terrorist and Extreme Websites, The Guardian, November 27, 2013,https://www.theguardian.com/uk-news/2013/nov/27/ministers-order-isps-block-terrorist-websites. Samuel Gibbs, French Law Blocking
Terrorist and Child Abuse Sites Comes Into Effect, The Guardian, February 9, 2015,
https://www.theguardian.com/technology/2015/feb/09/french-law-blocking-terrorist-and-child-abuse-sites-comes-into-effect.

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and Nazi propaganda.20 In Japan, for example, a voluntary approach has emerged to address
child pornography,21 and at a recent Ministerial meeting attended by Prime Minister Shinzo
Abe in April 2018, the Cabinet Secretariat’s Intellectual Property Strategic Headquarters(IPSH) requested ISPs to establish mechanisms to block three notorious piracy sites
specializing in アニメ and 漫画.22 This has led to the establishment of a Site Blocking
Council, made up of private industry and government officials who will discuss methods bywhich Japan could implement a site blocking remedy for egregious copyright infringing sites.
While site blocking is certainly not the only remedy available to governments and rights
holders to combat online infringements of copyright, it is an increasingly necessary andeffective one. Site blocking has been shown over time and in many markets to reduce piracy
visitation to blocked sites, reduce piracy visitation overall, and increase visitation tolegitimate content services.23
II.

SPECIFIC ISSUES RELATED TO SITE BLOCKING

1.

Definition of Site Blocking

Site blocking is a legal remedy by which technical methods are employed to deny Internet
users access to a specified online location. To date, site blocking has been implemented
territorially, to require Internet service providers (ISPs) or other intermediaries such as searchengines to prevent Internet users from accessing a website or online location, broadly
defined.24 In France, for example, orders have been obtained for ISPs to prevent Internet
users from accessing a specific website, and requiring search engines to delist the specificwebsite from their search results.25 Traffic from Internet users may be redirected by the ISPor other intermediary to a different page containing information about the reason for theredirection, links to legislation, links to legitimate content, where to complain, and so on.26

20
Some countries’ laws require blocking of certain types of websites or listings related to tragic events from the past (e.g., German and Frenchlaws require Google.de and Google.fr to remove Neo Nazi-related sites and other listings). Declan McCullagh, Google Excluding
Controversial Sites, CNet, October 24, 2002, https://www.cnet.com/news/google-excluding-controversial-sites/.
21
The Internet Contents Safety Association (ICSA) cooperates voluntarily with the National Police Agency (NPA) to block access to
websites containing child pornography.
22
Japan Asks Providers to Block Websites to Tackle Manga Piracy, Nikkei Asian Review, April 13, 2018,https://asia.nikkei.com/Politics/Japan-asks-providers-to-block-websites-to-tackle-manga-piracy.
23
See efficacy studies cited throughout this paper and, e.g., Brett Danaher et al, The Effect of Piracy Website Blocking on Consumer
Behavior, November 2015, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2612063 (finding that blocking 19 different major piracy
sites in the UK caused a meaningful reduction in total piracy and subsequently led former users of the blocked sites to increase their usageof paid legal streaming sites such as Netflix by 12% on average).
24
In a world of changing technology, it is important to remain flexible in terms of what online resources should be subject to blocking inorder to reduce online infringement. Both Australia and Singapore use the phrase “online location” in their statutes. While the phrase“online location” has no technical definition, the term can be understood as meaning for some resource to be accessible “online.” The
Australia courts are clear that this can be more than just a website. See Roadshow Films Pty Ltd v Telstra Corporation Ltd [2018] FCA 582
at [5] (an online location could also include specific locations from which various files may be downloaded by certain applications that are
pre-installed on an electronic device connected to the Internet, including those that operate on the Android operating system). The nature ofany specific online location will be determined by what is residing at that location (e.g., a website, a digital file folder, a software application,etc.) and the manner in which connections to that online location have been configured. As such, an online location may be understood not
only in terms of where it is physically hosted, but also by how the online location can be accessed in order to establish a connection.
25
SFR and Others v Association of Cinema Producers and Others, Cour Cass, Civ 1, 6 July 2017, No 16-17.217, 16-18.298, 16-18.348, 1618.595, ECLI:FR:CCASS:2017:C100909,
https://www.courdecassation.fr/jurisprudence_2/premiere_chambre_civile_568/909_6_37275.html (also holding that the intermediaries tocarry out the blocks were subject to carry the costs).
26
In Australia, for example, the site blocking orders require there to be a redirect page, and for the most part, users in Australia trying toaccess a blocked online location are redirected to [cite] which contains a page explaining why the website has been blocked, and inviting
Internet users to explore legal ways to obtain content, including links to those onward legitimate channels for distribution.

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a.

What Kinds of Actions Are Defined as Site Blocking?

The method of site blocking and the kinds of actions to be taken in conjunction with site
blocking depend on the country and what is required of or within the capability of theInternet service providers or other intermediaries. For ISPs, there are three most common
methods employed for site blocking: Domain Name System (DNS) blocking, Internet
Protocol (IP) address blocking, and Uniform Resource Locator (URL) filtering (with packet
inspection). Each of these three methods has been employed in countries that have
implemented site-blocking against copyright infringing sites and each method has been
proven to be effective and relatively easy for ISPs to implement.27 For other intermediaries,
there are other methods, but the most common employed to date is Delisting of a blocked
website as to an “information location tool” or search engine.28
2.

Regarding the Legal Systems for Site Blocking

As noted, 45 countries either have adopted and implemented, or are obligated to adopt andimplement, measures for ISPs to take steps to disable access to infringing websites. The
following chart provides the status of all 45 countries having or being obligated to have asite blocking remedy. The chart also cites studies which review the impacts of website
blocking efforts, revealing site blocking’s practicality and effectiveness in reducing piracy
and driving traffic to legitimate services. These results roundly demonstrate that website
blocking greatly contributes to: 1) reduced usage of the piracy websites subject to theblocks; 2) reduced usage of piracy websites on the whole; and 3) increased traffic tolegitimate offerings for copyright content. There is every reason to believe that the same
will hold true in other jurisdictions, including Japan.
a.

Legal Authorities and Statistics

Countries Adopting (or Obligated to Adopt) Site Blocking, Legal Authorities,# of Sites Blocked, Efficacy Research
1Country
Argentina

Sites Blocked
1 site blocked

Efficacy Research

AustraliaLaw
1933 Copyright Act; Unlawfulenrichment civil law articles.
Abuse of Rights doctrine.
Copyright Act, Section 115A2

82 sites blocked

Incopro study finds
significant drop in
visitation to blocked sites(>50%) and 25%
decrease in piracy
overall.29

3Austria*

Copyright Act, Article 81

10 sites blocked

4

Belgium*

128 sites blocked

5

BrazilCode of Economic Law, Article
XVII.14
Article 195 of the Industrial
Property Rights Act no.
9.279/96; Article 19, XIII and
162, §2 of the Organization of
Telecommunication Services

1 site blocked

27
See generally Nigel Cory, How Website Blocking Is Curbing Digital Piracy Without “Breaking the Internet”, August 2016,
http://www2.itif.org/2016-website-blocking.pdf. Cory’s article sums up the methods of site blocking the descriptions of which remain
largely relevant for this discussion.
28
SFR and Others v Association of Cinema Producers and Others, supra note 25.
29
Incopro, Site Blocking Efficacy, Australia, December 2017 (on file with MPA).

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Countries Adopting (or Obligated to Adopt) Site Blocking, Legal Authorities,# of Sites Blocked, Efficacy Research
Country30

6Denmark*

7

Finland*

8

France*9Germany*

10

Greece*11

Iceland

12

India

13

Indonesia

14

Ireland*15

Israel16

Italy*

17

South Korea

18

Lithuania*

19

Malaysia

Law
Act no. 9.472/97; Article 300 of
the New Code of Civil
Procedure
Copyright Act, § 411 and § 413;
voluntary Code of Practice
Copyright Act, Article 60c

Sites BlockedIntellectual Property Code,
Article L 336-2
Doctrine of Störerhaftung(derived from Articles 823(liability in damages) and 1004
(claim for removal andinjunction) of the German Civil
Code (BGB))
Law 2121/1993 Copyright,
Related Rights and Cultural
Matters, Article 64A
Copyright Act No. 73/1972,
Article 59 a
Code of Civil Procedure, Order
30 Rule 1, Order 39, Rules 1
and 2
Copyright Law No. 28 of 2014,
Articles 54-56; Regs. Nos. 14
and 26 (2015)

12 sites blocked

Efficacy Research

128 sites blocked
2 sites blocked

1 site blocked30

2 sites blocked

2 sites blocked
10 sites blocked

444 sites blocked

Copyright and Related Rights
Act, 2000 Sections 40 (5A), 205(9A)(a)Section 75 of the Courts Act

14 sites blocked

Copyright Act, Article 156,
163(1); AGCOM Regulation,
Criminal CodeAct on the Establishment andOperation of Korea
Communications Commission,
Act No. 8867, Feb. 29, 2008(2015), Art. 21; Act on
Promotion of Information andCommunication Network
Utilization and Information
Protection (2009), Art. 44-7

703 domains blocked32

Law on Copyright and Related
Rights, Article 78 (1)Communications and Multimedia
Act 1998, Section 263

1 site blocked

MPA study found sharp
reductions in piracy
visitation due to fourwaves after site blocking
implementation, with
reductions in traffic of
74% -94% at six months
post-block.31

2 sites blocked

456 sites blocked

198 sites blocked

MPA studies demonstrate
visits to blocked sites inSouth Korea declined overthe 18 waves of site
blocking between June2015 and March 2017 by
between 65% and 100% in
the six months following
each wave, with anaverage decline of 87% in
the six months followingsite blocking.33

MPA study found traffic
to blocked sites wasConstantin Film Verleih GmbH v. Vodafone Kabel Deutschland GmbH (2017) (Case number: 7 O 17752/17).
Motion Picture Association, Impact of Site Blocking in Indonesia (2017) (on file with MPA). This study also concludes that there was a 9
to 24% overall increase in piracy traffic due to the emergence of two piracy site groups: lk21 and indoxxi.
32
Orders in Italy are issued on a per domain basis.
33
Motion Picture Association, Impact of Site Blocking in South Korea (2017) (on file with MPA) (following up on MPA Study on Site
Blocking Impact in South Korea (2016)).
31

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Countries Adopting (or Obligated to Adopt) Site Blocking, Legal Authorities,# of Sites Blocked, Efficacy Research

34

Country

Law

Sites Blocked

20

Mexico1 site blocked

21

Netherlands*

22

NorwayLey Federal del Derecho deAutor, Precepto 177
Dutch Copyright Act Section 26d
and The Neighbouring Rights
Act 1993, Section 15e
Copyright Act, Section 56c

23

Portugal*

Code of Copyright and Related
Rights, Articles 210-G (1), 210H (2), General Inspectorate ofCultural Activities (‘IGAC’)
Competence Legislation

824 domains blocked35

24

Russia265 sites blocked

25

Singapore

26

Spain*

Civil Code, Article 1250,
Internet Law
Copyright Act, Section 193A,
DDA, DDB, and DDC
Copyright Act, Article 138

27

Sweden*2 sites blocked

28

Thailand29

Turkey30

UnitedKingdom*

Act on Copyright in Literary andArtistic Works Article 53 b
Computer Crime Act (2016),
Section 20(3)Law on Intellectual and Artistic
Works 5846 Supplementary
Item 4/3
Copyright, Designs and Patents
Act, Section 97A

31

Uruguay32

Bulgaria*

33

Croatia*

Ley 9.739, art. 46(a); Ley
17.616; Ley 17.520, arts. 1 and
2
Law on the Copyright andRelated Rights, Article 96f
Copyright and Related Rights
Act, Article 185

Efficacy Research
reduced in every wave ofsite blocking examined,
ranging from reductions of
67% and 74% six months
after waves 4, 5 and 6 of
Malaysia site blocking.34

1 site blocked

21 sites blocked
Research demonstrates
site blocking in Portugal
has resulted in an overall
69.7% drop in usage to thesites affected by the first 8
administrative blocking
waves ordered in the
country, and resulted in a
9.3% decrease in piracy
overall in Portugal to the
top 250 piracy sites(blocked andunblocked).36

54 sites blocked
16 sites blocked

1 site blocked
22 sites blocked

172 sites blocked

Research shows
significant (90%) drop in
visits to blocked whilecausing no increase inusage of unblocked piracy
sites, overall decrease inpiracy for all users, and anincrease in access tolegitimate services.37

1 site blocked

No case law to dateNo case law to dateMotion Picture Association, Impact of Site Blocking in Malaysia (2017) (on file with MPA).
Orders in Portugal are issued on a per domain basis.
36
Incopro, Site blocking efficacy study in Portugal: September 2015 to October 2016 (2017), http://www.incoproip.com/wpcontent/uploads/2017/07/Site-Blocking-and-Piracy-Landscape-in-Portugal-FINAL.pdf
37
Brett Danaher et al, Website Blocking Revisited: The Effect of the UK November 2014 Blocks on Consumer Behavior (April 2016),
http://ssrn.com/abstract=2766795.
35

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Countries Adopting (or Obligated to Adopt) Site Blocking, Legal Authorities,# of Sites Blocked, Efficacy Research
Country
Cyprus*Law
Copyright Act, Article 13(4)Sites Blocked
No case law to date

Copyright Act, Article 40

No case law to date

36

Czech
Republic*
Estonia*

No case law to date

37

Hungary*38

Latvia*Copyright Act, § 81(1); Law of
Obligations Act § 1055(1) and §1055(3)(1)
Copyright Act, Articles 94,
94A/1
Copyright Law, Article 69(1)(7)39

Luxembourg*

No case law to date40

Malta*

41

Romania*42

Slovakia*

Copyright, Related Rights andDatabases Act, Article 81(1)Enforcement of Intellectual
Property Rights (Regulation)
Act, Article 8(1)(a)Law No. 365 of 7 June 2002 on
Electronic Commerce, Article 16
Copyright Act, Article 56 (1)c43

Slovenia*

No case law to date

44

Liechtenstein

45

Poland*Copyright and Related Rights
Act 1994, Article 170
Has laws allowing for injunctive
relief to remove illegal content,
but no express implementing of
Article 8.3 of Infosoc Directive38
Polish rightsholders have filed acomplaint for the nonimplementation of Article 8(3)3435Efficacy Research

No case law to dateNo case law to dateNo case law to dateNo sites blocked to dateNo case law to dateNo case law to dateNo case law to date

* EU Member.

b.

Some Specific Law Examples

Different countries have implemented site blocking in different ways. For example, the 28
Member States of the European Union are bound by Information Society Directive (the EU
InfoSoc Directive), Article 8.3, which provides, “Member States shall ensure thatrightholders are in a position to apply for an injunction against intermediaries whose services
are used by a third party to infringe a copyright or related right.”39 They are also bound by
the Directive on the Enforcement of Intellectual Property Rights, which supports and isconsistent with the goals of Article 8.3.40 Article 8.3 implementations vary by country.
Here are some examples of countries that have adopted site blocking, and how they havedone so in their laws:

38
Swiss Institute of Comparative Law, Comparative Study on Blocking, Filtering and Take-Down of Illegal Internet Content, December
2015, https://rm.coe.int/168065549f.
39
Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the Harmonisation of Certain Aspects of
Copyright and Related Rights in the Information Society, Official Journal L 167, 22/06/2001 P. 0010 – 0019, Art. 8.3.
40
Section 9, Article 11 of the EU Enforcement Directive provides, in relevant part, “Member States shall ensure that, where a judicial
decision is taken finding an infringement of an intellectual property right, the judicial authorities may issue against the infringer an
injunction aimed at prohibiting the continuation of the infringement. … Member States shall also ensure that rightholders are in aposition to apply for an injunction against intermediaries whose services are used by a third party to infringe an intellectual property
right, without prejudice to Article 8(3) of Directive 2001/29/EC.” Directive 2004/48/EC of the European Parliament and of theCouncil of 29 April 2004 on the Enforcement of Intellectual Property Rights, Official Journal of the European Union L 157 of 30
April 2004.

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

In the UK, Article 97A, amended in 2003 to implement Article 8.3 of the EU
InfoSoc Directive, provides for injunctive relief against a service provider (definedbroadly) when the service provider “has actual knowledge of another person using
their service to infringe copyright.”



In France, in Article L.336-2 of the French Intellectual Property Code, it is statedthat when copyright is infringed as a result of a “publicly-available online
communication service,” the court may order “any measure to prevent or put an end
to such an infringement” … “against any person that can contribute to remedying thesituation.”

In Singapore, Section 193DD(A) of the Copyright Act states that the High Court
may make an order “requiring [a] network service provider to take reasonable steps todisable access to [a] flagrantly infringing online location,” taking into account several
statutory factors. See also Sections 193A, DDA, DDB, and DDC.

In Australia, Section 115A of the Copyright Act states that the Federal Court ofAustralia may, taking into account several discretionary factors, “grant an
injunction … to require [a] carriage service provider to take reasonable steps todisable access to [an] online location … that … infringes, or facilitates aninfringement of, the copyright” if “the primary purpose of the online location is toinfringe, or to facilitate the infringement of, copyright.”



In Malaysia, pursuant to Section 263 of the Communications and Multimedia Act
1998, the Malaysian Communications and Multimedia Commission (MCMC) may
order its “licensee” to “prevent the network facilities that he owns or provides or the
network service, applications service or content applications service that he provides
from being used in, or in relation to, the commission of any offence” including
copyright infringement.



In Indonesia, pursuant to Articles 55 and 56 of Regulations Nos. 14 and 26 of2015, the Minister Directorate General of Intellectual Property Rights (DGIPR)
may, “[i]n case there is sufficient evidence to be found” of “copyright and / or related
rights infringement through electronic systems for Commercial Use” … “recommend
to the Minister of Telecommunications and Informatics to block some or all of thecontent infringing the Copyright in the electronic system or make the electronicsystem service inaccessible.”In Thailand, pursuant to Section 20 of the Computer Crimes Act 2007, the Ministerof Digital Economy “may submit a motion together with evidence to the competentcourt to order discontinuation of dissemination or deletion of [computer data which isa criminal offense under the intellectual property laws] from the computer system.”

In Korea, the Korea Copyright Protection Agency (KCOPA), in consultation with
the Ministry of Culture, Sports and Tourism (MCST) overseas the blocking of sites
which infringe copyright, based on organizing statutes including the Act on
Promotion of Information and Communications Network Utilization andInformation Protection, Etc.

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

In India, under Section 51(a) read with Section 55 of the Copyright Act 1957, one
may obtain an injunction order against a defendant piracy website; the order isenforced by ISPs impleaded as no-fault defendants to the suit. The Department of
Telecommunications (DOT) and the Ministry of Electronics and Information
Technology (MEITy) are also impleaded as defendants to the suit in order tocommunicate and help carry out the order.
c.

Authorities Deciding Site Blocking

Argentina
Australia
Austria*
Belgium*BrazilDenmark*
Finland*France*Germany*
Greece*Iceland
India
Indonesia
Ireland*IsraelItaly*
Korea
Lithuania*
Malaysia
MexicoNetherlands*
NorwayPortugal*
RussiaSingapore
Spain*
Sweden*ThailandTurkeyUnited Kingdom*
Uruguay

Court; National Communications Commission (NCC)
Court (Federal)
Court (Commercial, Handelsgericht)
Court (Criminal)
Court
Court (City)
Court (Market)
Tribunal, Court of Cassation
Court
Court
Court
Court
Directorate General of Intellectual Property Rights; Ministry of Communication andInformation Technology (Kementarian Kominfo)
Court (Commercial, High)
Court (Criminal)
Italian Communication Authority (AGCOM)
Korea Communications Standards Commission; Korea Copyright Protection Agency(KCOPA)
Court (Regional)
Ministry of Domestic Trade, Co-operatives and Consumerism; Malaysian Communications
And Multimedia Commission
Court
Court
Court
Inspeção-Geral das Atividades Culturais (IGAC)
Court
High Court of Singapore
Court
Court
Department of Intellectual Property, Ministry of Digital Economy, Intellectual Property &International Trade Court
Court
Court
Criminal Trial Court* EU Member.

3.

Notorious Infringing Sites That Have Been Blocked Around The WorldOver the last decade, ISPs in multiple countries have used various judicially andadministratively-ordered site-blocking measures to block access to some of the world’s mostnotorious illegal websites that infringe copyright.
Site
ThePirateBay

NOTORIOUS INFRINGING SITES BLOCKEDFirst Blocking Date
Jurisdictions
May 2010
20 countries - Argentina, Australia,
Austria, Belgium, Denmark, Finland,Site Blocking Global Best Practices
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Site

GoMovies/123movies

NOTORIOUS INFRINGING SITES BLOCKEDFirst Blocking Date
Jurisdictions
France, Greece, Iceland, Indonesia,
Ireland, Italy, Malaysia, Netherlands,
Norway, Portugal, Singapore, Spain,
Sweden, United Kingdom
January 2016
8 countries - Australia, Denmark,Indonesia, Italy, Malaysia, Portugal,
Singapore, United Kingdom

EZTV

July 2013

7 countries - Australia, Denmark,Indonesia, Portugal, Singapore, United
Kingdom

rarbg

October 2015

8 countries - Australia, Denmark,Indonesia, Ireland, Italy, Portugal,
Singapore, United Kingdomyts

February 201710 countries - Australia, Denmark,India, Indonesia, Ireland, Malaysia,
Norway, Portugal, Singapore, United
Kingdom

1337x

October 2015

9 countries - Australia, Austria,
Denmark, India, Ireland, Italy,
Portugal, Singapore, United Kingdom

MyWatchSeries

February 2017

5 countries - Australia, Belgium,
Ireland, Portugal, United Kingdom

BitSnoop

August 2013

6 countries - Australia, Belgium,
Denmark, Korea, Portugal, United
Kingdom,

CouchTuner

December 2015

4 countries - Australia, Norway,
Portugal, United Kingdom

Demonoid

September 2014

5 countries - Australia, Denmark, Italy,
Portugal, United Kingdom

ExtraTorrent

October 2013

7 countries - Australia, Belgium,
Denmark, Malaysia, Norway, Portugal,
United Kingdom

fMovies/bmovies/cmovies

February 2017

4 countries - Australia, Denmark,
Malaysia, Singapore

H33T

February 2013

4 countries - Austria, Belgium, Italy,
United Kingdom,

Isohunt

July 2013

10 countries - Australia, Austria,
Belgium, Denmark, France, Indonesia,
Italy, Malaysia, Portugal, United
Kingdom

TorrentHound

August 2013

7 countries - Australia, Belgium,
Denmark, France, Italy, Portugal,
United Kingdom,

KickAssTorrents

May 2012

11 countries - Australia, Belgium,
Denmark, Finland, Greece, Indonesia,
Ireland, Italy, Malaysia, Portugal,
United Kingdom

LimeTorrents

May 2014

6 countries - Australia, Denmark,France, Italy, Portugal, United
Kingdom

Movie4K

July 2014

8 countries - Australia, Austria,
Belgium, Denmark, Indonesia, Italy,
Norway, Ireland

Putlocker

July 2014

7 countries - Australia, Denmark, Italy,
Malaysia, Norway, Portugal, United
KingdomSite Blocking Global Best Practices
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NOTORIOUS INFRINGING SITES BLOCKEDFirst Blocking Date
Jurisdictions
October 2013
8 countries - Australia, Denmark, India,

Site
Torrentz/Torrentz2

Italy, Malaysia, Portugal, Singapore,
United Kingdom,
TubePlus

November 2013

5 countries - Denmark, Italy, Norway,
Portugal, United Kingdom

Viooz

February 2014

7 countries - Australia, Denmark, Italy,
Malaysia, Norway, Portugal, United
Kingdom

WatchSeries

November 2014

7 countries - Australia, Denmark, Italy,
Norway, Portugal, Singapore, United
Kingdom

XMovies8

May 2016

5 countries - Australia, Malaysia,
Portugal, Singapore, United Kingdom

Yify-Torrent

January 2016

5 countries - Australia, Indonesia, Italy,
Malaysia, Portugal

4.

Policy and/or Legislative Debate

There are some records of policy and/or legislative debate in countries adopting site blocking.
The following discusses the specific situations in two of those countries: Singapore andAustralia.
a.

Singaporei.

Media Convergence Review

In March 2012, the government of Singapore launched a Media Convergence Review,
convening a panel of experts to discuss recommendations in several policy areas. One area
they specifically looked at was “online copyright challenges.” In Chapter 5 of the Media
Convergence Review Panel’s (MCRP) Final Report issued in November 2012, they
recommended that the Singapore government “develop policy and regulatory response tocopyright and digital piracy challenges.”41 After considering views from different
stakeholders, the MCRP recommended that a “three-pronged approach – comprising public
education, legitimate digital content sources and regulation – should be taken to holisticallyaddress copyright challenges, which – if not addressed – could undermine the economic
viability of the media industry, and the effectiveness of media in forging social cohesion.”
Chapter 5 also discusses “the different implementation models of site blocking that could be
adopted to combat digital piracy.”
In Chapter 5, the MCRP concluded that, of the potential regulatory approaches, “siteblocking was deemed to be the most feasible regulatory measure to combat digital piracy.”
The MCRP discussed a “fixed list” approach (which at the time had been adopted in
Malaysia; note this “fixed list” approach has now evolved to permit more exhaustive site
blocking since the piracy ecosystem has changed requiring a speedier and more flexible
approach), a “co-regulatory” approach (essentially, government-mandated administrative site
blocking, possibly buttressed by a voluntary “code of practice” between rights holders, ISPs
41

Media Convergence Review Panel, Media Convergence Review Final Report, November 2012, https://www.imda.gov.sg//media/imda/files/regulation-licensing-and-consultations/consultations/media-convergence-review/1-media-convergence-review-finalreport.pdf?la=en.

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and other stakeholders), or a combined approach. The MCRP indicated that whatever theapproach, its implementation should be “transparent and ensure that (i) appropriate criteria –that can stand up to scrutiny – are drawn up for identification of copyright infringing sites;(ii) ISPs and the Government are indemnified from blocking of any wrongly identified
copyright infringing site; and (iii) quick and effective appeal and reinstatement avenues areprovided.”ii.

Public Consultation

Thereafter, in April 2014, the Ministry of Law released a “Copyright (Amendment) Bill2014” and launched a two-week “Public Consultation on the Proposed Amendments to the
Copyright Act.”42 The Ministry received feedback from many stakeholders, and provided its
responses in May 2014, which included some changes to its initial proposal (for example, therequirement that ISPs have “knowledge” that they provide access to a “flagrantly infringing
online location” or FIOL was removed from the proposed amendment).43
iii.

Specific Concerns Raised in Japan Debate Thus Far(a)Circumvention of Site Blocking or Lack of Effectiveness

The Ministry responded to such “feedback” as “[s]ite blocking measures can be easily
circumvented, and hence getting ISPs to block pirate sites would not be effective,” noting, forexample, “[s]tudies have shown that site blocking can deter online piracy to some degree,”44
and indicating that other anti-piracy measures such as “graduated response” “may not besuitable in Singapore’s context as it may be too intrusive.”(b)

Secrecy of Communication

In Singapore, there was no debate regarding secrecy of communications.
(c)Freedom of Expression and Related Concerns

The Ministry also responded, among other things, to the “feedback” that site blocking as
proposed by the government “will significantly restrict the public’s access to digital content,
as there is a lack of cheap, legitimate digital content services in Singapore” and “could curb
access to educational material or other freeware online,” affecting “teachers’ lesson
preparations and students’ learning.” In response, the Ministry noted, “[t]here is already arange of legitimate digital content services offered in Singapore,” but indicated thegovernment would “encourage industry to make available more legitimate digital content to42
Ministry of Law, Public Consultation on the Proposed Amendments to the Copyright Act, April 7, 2014,
https://www.mlaw.gov.sg/content/minlaw/en/news/public-consultations/public-consultation-on-the-proposed-amendments-to-the-copyright.html (link to Bill provided).
43
Ministry of Law, Responses to Feedback Received from Public Consultation on the Proposed Amendments to the Copyright Act, May 29,
2014, https://www.mlaw.gov.sg/content/minlaw/en/news/public-consultations/responses-to-feedback-on-copyright-act-2014.html. The
Annex provides a matrix containing the gist of the feedback received, and the Ministry’s specific responses. Ministry of Law, Public
Consultation on Amendments to the Copyright Act MinLaw’s Response to Feedback, May 29, 2014,
https://www.mlaw.gov.sg/content/dam/minlaw/corp/News/MinLaw%20Responses%20to%20feedback%20on%20Amendments%20to%20t
he%20Copyright%20Act%20.pdf.
44
The Ministry noted, “the International Federation of the Phonographic Industry (IFPI)’s Digital Music Report 2013 reported that within ayear of five European countries imposing blocks on The Pirate Bay, usage levels of The Pirate Bay site in these countries fell by about 70
percent.” See also below the discussion herein on the efficacy of site blocking through numerous public studies now available demonstratingthat site blocking is effective in reducing piracy.

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Singapore quickly and at reasonable cost.” The Ministry also noted that only “flagrantly
infringing online locations” would be targeted for blocking and that “[e]ducational material
or other freeware can still be shared through many online platforms.” Finally, the Ministry
responded to the feedback that “[t]he proposed measure is a form of Government regulationand censorship of the internet,” which would “restrict Singaporeans from surfing the internet
without any restraint,” and that “[i]ndividuals and companies may use the proposed measure
to censor sites that they disagree with.” The Ministry remarked that the purpose of the statuteis to protect “copyright” and that “[o]nly rights owners, their exclusive licensees, or theirauthorised representatives … will be allowed to apply to the High Court for an order todisable access to flagrantly infringing sites.” The Ministry indicated that the government“will not play any role in identifying or determining pirate sites,” and that to ensure that only
FIOLs are blocked, a “non-exhaustive list of factors has been prescribed to guide the Courts
in making such a determination.”v.

Introduction and Passage of Site Blocking Bill

Ultimately, the Bill introduced in July 2014 to the Parliament added Section 193DDA et seq.
(provided in the Appendix hereto). The Ministry of Law explained in its introduction of theBill explained that its provisions aimed to “provide rights holders with an avenue to apply
directly to the Courts for injunctions disabling access to flagrantly infringing sites, without
having to sue ISPs and establish their liability for copyright infringement.”45 The Ministry
further explained:“The targeted approach ensures that only websites which blatantly infringe
copyright are affected. A non-exhaustive list of factors will guide the Courts’
consideration in determining what constitutes such flagrant infringement.
These factors include whether the online location’s primary function is tocommit or facilitate copyright infringement; and whether the owner of theonline location demonstrates a disregard for copyright.”“Sites that offer primarily legitimate content and business services such as
cloud storage services, search engines and social media sites will not beaffected.”46“The judicial process is expected to be more efficient, enabling rights holders
to obtain injunctions with greater speed and certainty. The interests of ISPs
and online location owners will also be protected through statutory
requirements and procedural safeguards.”
No other explanatory memorandum or impact statement accompanied the legislation, which
was passed by the Parliament on July 8, 2014, and was assented to by the President on
August 13, 2014. In the Parliamentary debate, on July 7, 2014, upon Second Reading of the45
Ministry of Law, Amendments to the Copyright Act, Strengthening Singapore’s Intellectual Property Regime, Combating Online Piracy,
July 7, 2014, https://www.mlaw.gov.sg/content/minlaw/en/news/press-releases/amendments-to-the-copyright-act-2014.html.
46
As noted above, two proposed best practices conflict with the government of Singapore’s recommendation back in 2014, but are soundly
based on the latest research. First, all “intermediary service providers” should implement the remedy in Japan, since the latest data fromresearch firm SARI demonstrates that 70% of new pirates in Australia used search engines at some point in the process of discovering an
infringing source of content, with 44% of those new pirates stating they were not actively looking for infringing content when they found it.
Second, the law should ensure unavailability of sites having a “substantial purpose or effect” of infringing or facilitating infringement. As
noted above, 27% of total piracy usage in Australia has been classified by research company INCOPRO as coming from cyberlockers or
hosting sites.

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Bill, The Senior Minister of State for Law (Ms. Indranee Rajah) referred to the MCRP
process, noting, as they had concluded, “[a]mong the various regulatory measures that could
be adopted, the MCRP deemed site blocking to be the most feasible measure to combat
digital piracy.”47 She also walked the Parliament through the Bill in a manner entirely
consistent with the Ministry’s explanation.
b.

Australia

In July 2014, the Attorney General and Minister for Communications (now the Prime
Minister) issued an Online Copyright Infringement Discussion Paper which included, among
other proposals, a proposal to extend “injunctive relief to block infringing overseas sites.”48
Thereafter, the government received submissions and held a forum in September 2014. Thosesubmissions hit a range of issues, and as could be expected, included both proponents of site
blocking and opponents, with the latter raising some issues which then made their way into
the Bill and Parliamentary debate. In December 2014, the Attorney General and the Minister
followed up the discussion paper with correspondence to various stakeholders broadly
outlining the legislative amendments they intended to be introduced into Parliament in early
2015.
i.

Introduction and Passage of Site Blocking Bill

Thereafter, in March 2015, the Copyright Amendment (Online Infringement) Bill 2015 wasintroduced into the Australian House of Representatives. The Bill and revised Explanatory
Memorandum (EM) include as discretionary factors to be considered by the judge thefollowing:

the flagrancy of the infringement or its facilitation
whether disabling access to the online location is a proportionate response in thecircumstances
the impact on any person likely to be affected by the grant of the injunction, andwhether it is in the public interest to disable access to the online location.

As indicated in the EM, “[t]he factors that the Court may take into account set an
intentionally high threshold test for satisfaction by the Court.”49 Thereafter, on March 26,
2015, the Bill was referred to the Senate Legal and Constitutional Affairs Legislation
Committee, which endorsed the Bill with some minor amendments on June 11, 2015.
Thereafter, the Bill, with changes, was passed by the House of Representatives on June 16,
2015, and passed by the Senate after debate on June 22, 2015. The Copyright Amendment(Online Infringement) Act 2015 received Royal Assent on June 26.
ii.

Specific Concerns Raised in Japan Debate Thus Far

During the Parliamentary Debate which occurred on June 22, 2015, the Greens Party
expressed its opposition to the Bill. The two major parties in Australia, Labor and Liberal,
47
Ministry of Law, Second Reading Speech by Senior Minister of State for Law, Indranee Rajah SC, on the Copyright (Amendment) Bill,
July 7, 2014, https://www.mlaw.gov.sg/content/minlaw/en/news/parliamentary-speeches-and-responses/2R-speech-by-SMS-on-copyrightamendment-bill-2014.html.
48
Australian Government, Online Copyright Infringement Discussion Paper, July 2014 (on file with MPA).
49
Parliament of Australia, Copyright Amendment (Online Infringement) Bill 2015,
http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fbillhome%2Fr5446%22.

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both supported the Bill through to passage.
(a)

Circumvention of Site Blocking or Lack of Effectiveness

Then Senator Scott Ludlum of the Greens Party (he resigned in July 2017 over a dual
citizenship issue) opposed the Bill, citing the Electronic Frontier Foundation (EFF) in its
submission that the Bill was “inevitably ineffective and offers little benefit,”50 but offered no
support for this assertion. Instead, he further cited EFF as asserting passage of the Bill would“make it more difficult for Australia to take a stand against these practices when practised byauthoritarian countries, and to resist pressure from domestic special interest groups to block
more and more categories of content that they may find offensive or undesirable,” and further
cautioned that the Bill would lead to an expansion of blocking. Then Senator Ludlum also
indicated the submissions of Amcom and iiNet asserted site blocking was “unlikely to be aneffective way of dealing with online copyright infringement, and cited Google as saying“[t]here is increasing evidence to suggest that site-blocking is not the most effective means ofstopping piracy,” but again, he did not provide any support for these assertions/claims. The
Liberal Party, in its response, largely ignored the former Senator’s assertions or theorganizations cited, but did indicate that they were inclined to accept the Internet Society ofAustralia’s suggestion that the legislation be reviewed after a period of time, ultimately
settling on 18 months after passage (a review which is now underway).
The Joint Submission from the Australian Film & TV Bodies in the s115A review called
upon the government to make the following changes, among others, to improve the law: 1)
amend s115A to explicitly recognize that rightsholders may seek an interim order process to
obtain immediate relief against such sites in advance of case management and full court
hearings; 2) implement a notification system by which new domains/IP addresses/URLs
providing access to online locations already subject to an order under s115A of the Act are
simply notified by those carrying out the order, who then quickly implement it against those
new domains/IP addresses/URLs; 3) substitute “A substantial purpose or effect” for the “theprimary purpose” as a threshold factor; and 4) create a new definition of “intermediaryservice provider” which extends to relevant service providers involved in the identificationand delivery of content.51(b)Secrecy of Communication

In Australia, there was no debate regarding secrecy of communications.
(c)Freedom of Expression and Related Concerns

Other than the above discussion (i.e., former Senator Ludlum’s opposition raised in the
Parliamentary Debate), there was no debate regarding freedom of expression or related
concerns in Australia.

50

Parliament of Australia, Senate Official Hansard, No. 7, 2015, Monday, 22 June 2015,
http://parlinfo.aph.gov.au/parlInfo/download/chamber/hansards/1eb1287f-fcac-4be0-a69b337a2d2d90ca/toc_pdf/Senate_2015_06_22_3534_Official.pdf;fileType=application%2Fpdf#search=%22r5446%20%20second%20reading%22, at 4021.
51
Joint Submission from the Australian Film & TV Bodies, Submission in Response to the Review of the Copyright Online Infringement
Amendment, March 23, 2018 (on file with MPA).

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6.

Key Case Decisions (in Chronological Order)

Twentieth Century Fox and others v British Telecommunications plc, [2011] EWHC 1981
(Ch) (Newzbin 2): This seminal case firmly established broad site blocking injunctions in
the UK under Section 97A of the Copyright Designs and Patents Act 1988 (CDPA). Prior
to this case, the Newzbin website had been found in a prior case to massively infringe
copyright in films owned by various major studios in a prior case (Twentieth Century Fox
Film Corp v Newzbin Ltd [2010] EWHC 608 (Ch) (Newzbin 1)). Following the injunction
issued in Newzbin 1, the original Newzbin company ceased to trade, but a virtually identicalwebsite opened shortly afterwards. As this website was based offshore and run by
unidentified individuals, the rights holders were unable to proceed directly against the newsite, so brought an action against British Telecom (BT), seeking orders for BT to block accessto the new website.
Arnold J held that there was jurisdiction to grant an injunction under section 97A of the
CDPA. This section, he explained, was inserted in 2003 as part of the implementation into
UK law of Article 8.3 of the EU InfoSoc Directive, giving the High Court the power to grant
an injunction against a service provider “where that service provider has actual knowledge ofanother person using their service to infringe copyright.” Arnold J found that each of therequirements had been met, namely: 1) BT's service had been used to infringe copyright(both by end users and the operators of the service); and 2) BT had actual knowledge (it was
not necessary to show that BT had knowledge of every individual infringement before section
97A applied). Arnold J held that a broader injunction could be granted (including measures
which contribute to preventing further infringements of the same kind), relying on the broad
injunctive powers as interpreted in the then-recently decided case of L’Oréal SA and Others v
eBay International AG and Others, Case C-324/09 (12 July 2011) (“the jurisdiction conferredin the [EU Enforcement Directive] on national courts must allow them to order [a service
provider] to take measures that contribute not only to bringing to an end infringements
committed through that marketplace, but also to preventing further infringements”).
UPC Telekabel Wien GmbH v Constantin Film Verleih GmbH and Wega
Filmproducktionsgesellschaft mbH (Telekabel), Case C-314/12, 27 March 2014: This casedecided in March 2014 firmly established “no fault” site blocking injunctions under
Article 8.3 of the EU InfoSoc Directive, opening the way for broader implementation of site
blocking throughout the European Union. Specifically, questions were posed by the Higher
Regional Court, Vienna, Austria, essentially as to: 1) whether Article 8(3) of the EU InfoSoc
Directive is to be interpreted as meaning that a person who makes protected subject-matter
available on the internet without the rightholder’s consent is using the services of the Internet
service providers, and therefore, the Internet service provider is an “intermediary” within themeaning of Article 8(3); and 2) whether it is compatible with EU law to prohibit in generalterms an internet access provider from allowing its customers access to a certain websitewhen the material available on that website is provided exclusively or predominantly without
the rightholder’s consent.
In answering both questions in the affirmative, the Court of Justice of the European Union
laid the groundwork for national courts to (as the court had in Newzbin 2) issue a broad
injunction against an Internet service provider to block websites. The CJEU found that an
injunction would not infringe upon the fundamental right to conduct business because the ISP
was free to decide upon the measure to be put in place to protect against this type ofSite Blocking Global Best Practices
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copyright infringement (later decisions, see below, confirm that the same applies to the costs
associated with site blocking). The injunction would also allow Telekabel to avoid liability
by showing that it has taken all necessary precautions, essentially confirming a “no fault”
injunction approach in the EU.
GEMA v Deutsche Telekom, BGH, Urteile v. 26 (GEMA), November 2015 – I ZR 3/14
und I ZR 174/14: Germany’s Federal Constitutional Court (BGH) in late 2015 confirmedthat site blocking does not breach privacy rights under both German and EU law, andis consistent with the German Constitution. In analyzing whether site blocking can beconsistent with Article 10 (1) of the German Constitution (right of privacy oftelecommunications), the Court noted, “[t]he starting point for the protection in Art. 10 (1) …
is always the non-public exchange of specific communications of participants; in contrast,
communications addressed to the general public are not covered by this provision.” The
Court found, “a site providing links to downloads on the internet directed at an unspecificnumber of addressees does not constitute confidential individual communication; rather it is,
as a public offering, not covered by the scope of protection of Art. 10 (1) ….” The Court also
concluded that DNS blocking “does not affect the confidentiality of communication
protected under Art. 10 (1) ….” The Court weaves a path for IP or URL blocking as well,52
but is more emphatic about DNS blocking’s conformity with the German Constitution,noting DNS blocks are inherently unproblematic in this basic point as the establishment ofconnections is simply prevented - without access to IP addresses. According to the Court,
offering files for public download and accessing those files does not constitute an individual
communication protected by Article 10 of the German Constitution. Further,“[t]he fact that access to a public offer of a download occurs in each casethrough means of individual technical communications connections does notjustify a classification as communication within the meaning of Art. 10 (1)German Constitution, because a mere technical communication does notexhibit the specific risks for the privacy of the communication which thatprovision protects …. Such access actually constitutes a public form ofcommunication comparable to the use of mass media ….”
Importantly, and addressing one of the key objections to site blocking in Japan, the Court
further concluded, “the (automated) obtaining of knowledge, on the part of the provider, ofthe circumstances of communication is limited to that necessary to interrupt thecommunication.” This is consistent with prior rulings that there is no interference with thefundamental right to privacy “in the case of the recording of telecommunications events,
provided they are recorded purely using technical means, anonymously and without trace andare immediately filtered out without any interests of the authorities in gaining knowledge
thereof.” The Court also examined site blocking in light of the EU’s strict privacy rights
provisions, and the EU Charter of Fundamental Rights, finding site blocking to be consistent
with both. Specifically, the Court concluded that site blocking does not breach Article 7 of
the EU Charter of Fundamental Rights, since the purpose of the right – protecting “theconfidentiality of communication which is directed at particular addressees and not at the
public” – is not affected by the blocking of public offerings of downloads or access to them.”
This is consistent with site blocking decisions in other EU jurisdictions. While the case itself
52
Id. Regarding IP or URL blocking, the Court noted, “[i]f the data necessary for the implementation of IP and URL blocks is immediately
thereafter deleted using technical means, anonymously, without trace and without any additional interest in obtaining knowledge thereof, themeasures do not attain the qualities of an interference in Art. 10(1).”Site Blocking Global Best Practices
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did not result in the first site block in Germany, it can be said the GEMA case paved the way
for the Constantin decision to come (see below).
Stichting Brein v Ziggo BV and XS4ALL Internet BV (C-610/15) (Ziggo): This casedecided in June 2017 firmly established copyright infringement liability in the EU
against torrent and linking sites, and paves the way for site blocking of the top piracy
sites in the EU, even when those sites do not host the content. While rights holders hadgone after the notorious piracy site The Pirate Bay in the Netherlands courts for years (datingback to 2009), getting a site blocking order in the Netherlands against the site to stick
remained elusive, with the Court of Appeals (The Hague) reversing an initial site blocking
order on grounds the block would not be effective in reducing piracy overall. The Supreme
Court disagreed, holding that rights holders did not need to demonstrate that the blocking of
The Pirate Bay decreases overall piracy levels, but the Court referred the question to the
CJEU whether The Pirate Bay infringes the communication to the public right, i.e., whether it
commits a tort, and whether such infringement would be sufficient to impose site blocking
measures.
The CJEU held that the concept of ‘communication to the public’, within the meaning of
Article 3(1) of the EU InfoSoc Directive must be interpreted as covering the making
available and management on the Internet of a sharing platform which, by means of indexingof metadata relating to protected works and the provision of a search engine, allows users ofthat platform to locate those works and to share them in the context of a peer-to-peer
network. Although the protected works were not hosted by The Pirate Bay website (but by its
users through a peer-to-peer network), it was held that the operators played an essential rolein making those works available. They had full knowledge of what they were doing and also
checked that works were placed in the appropriate category, deleted obsolete or faulty torrent
files and actively filtered some content.
SFR and Others v Association of Cinema Producers and Others, Cour Cass, Civ 1, 6 July
2017, No 16-17.217, 16-18.298, 16-18.348, 16-18.595, ECLI:FR:CCASS:2017:C100909(Allostreaming): This seminal case (and the lower court decision) decided by the French
Supreme Court (Cour de cassation) on July 6, 2017, established two very important
precedents. The French Supreme Court: 1) confirmed the decision of the Paris Court ofAppeal in March 2016 (RG No. 040/2016) which held that Internet intermediaries mustbear the costs for implementing blocking measures against illegal streaming websites of
copyright content; and 2) confirmed that search engines qualify as intermediaries under
Article 8.3 of the EU InfoSoc Directive, meaning they can be subject to orders to delist
websites ordered for site blocking under Article 8.3.53
Constantin Film Verleih GmbH v. Vodafone Kabel Deutschland GmbH (2018) (Casenumber: 7 O 17752/17) (Constantin): In this landmark decision handed down in February
2018, the Munich District Court ordered site blocking in Germany for the first time. Thisis the first decision of a German court ordering site blocking of a copyright infringing
website, and will have reverberations for site blocking around the world. The court also ruled
53
More specifically, the Court underlined that search engines, like ISPs, participate in the transmission of infringing network transmissions
by a third party, and therefore must be considered as “intermediaries” under the EU InfoSoc Directive. The Court further noted that thefunction of search engines is not limited to purely neutral indexing and referencing but includes providing direct access to infringing
websites or location of domains, even when such websites/domains have been blocked by ISPs. The Court concluded that excluding searchengines from the scope of Article 8.3 would substantially reduce copyright protection as required by the EU InfoSoc Directive.

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that Vodafone had to bear the implementation costs (and had to pay rights holder
Constantin’s legal costs). In arriving at its decision, the court applied the German Telemedia
Act, and applied the secondary liability doctrine of Störerhaftung, and the court’s decision isconsistent with Germany’s obligations under Article 8.3 of the EU InfoSoc Directive.
Vodafone appealed the decision in March, but on June 14, after an oral hearing before the
Court of Appeal Munich, the three-judge panel denied the appeal unanimously.
Roadshow Films Pty Ltd v Telstra Corporation Ltd. (SCA 239/16 and 240/16): These
landmark cases decided in December 2016 firmly established site blocking in Australia for
the first time, including 1) a broad definition of “online location” (more than just a
website), 2) the temporal nature of piracy, 3) broad facilitation liability, and 4) aworkable process to add additional domains resolving to the same online location
previously blocked. Regarding the temporal nature of piracy, Nicholas J indicated that asite’s temporary status (i.e., offline) shall not preclude a blocking order from being issued aslong as it meets the statutory criteria, e.g., at the time of filing. Consistent with the Ziggo
case (i.e., coverage of torrent and linking sites), Nicholas J finds that an online location may
qualify for blocking merely by facilitating infringement, namely, “it may also facilitate theinfringement of copyright merely by making it easier for users to ascertain the existence or
whereabouts of other online locations that themselves infringe or facilitate the infringementof copyright” (para. 47).
Roadshow Films Pty Limited & Ors v Telstra Corporation Limited & Ors (2018)(1925/2017): This seminal case decided in April 2018 established for the first time that thesite blocking statute in Australia may be used to block domains operating a piracy app
used on piracy devices (i.e., set top boxes). In this first-of-its-kind application at the Federal
Court of Australia, rights holders obtained blocking orders of sub-domains which act tooperate various functionalities of a once-popular piracy app used to infringe copyright. The
launch of the case led to an almost immediate and total disruption of the app, sending theoperator scrambling to rebrand and/or upgrade its service. This judgment paves the way forthe site blocking laws to be used to disrupt apps (and the devices on which they operate) from
infringing copyright. Nicholas J accepting the concept that a target online location unders115A can be something more than ‘websites’, including ‘specific locations from which
various files may be downloaded by certain applications that operate on the Android
operating system.’
Disney Enterprises, Inc. & 5 Ors V M1 Limited & 9 Ors (HC/OS 1201/2015): This caseestablished site blocking for the first time in Singapore under Section 193DDA of the
Copyright Act (Cap. 63). The case decided in February 2016 established precedents,
including that the subsidiarity requirement of notice and an opportunity to cure cannot be
fulfilled by the “flagrantly infringing online location” (FIOL) if it does so after the statutory
period provided (14 days). This case led to a second successful blocking order handed downin April 2018 in Disney Enterprises, Inc. & Ors. v M1 Limited & Ors., HC/OS 95/2018, in
which the High Court of Singapore ordered ISPs to block 53 websites/154 domains, making
it the largest anti-piracy case ever brought in Singapore. Important precedents have been set
in this second decision that will ease future site blocking applications, including confirming
the temporal nature of piracy, since several sites were available at the time of filing but downat the time of the hearing, and an efficient renewal process granted (notice plus an affidavit
filed at court).

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UTV Software Communications Limited & Ors v 1337.to & Other (2017): This casedecided in October 2017 established for the first time a permanent blocking order of an
entire site in India. The key highlights of this new precedent are that: the Order applies tothe entire websites (as opposed to specific titles or sporting events); the Order allows studios
to seek leave to add variants (redirects or proxies) of the two sites ordered blocked after theOrder is in force; the decision is one of the first orders in India directed at the blocking of
torrent websites; this is the first site blocking case in India involving multiple plaintiffs, andthe first time in such a case that the courts have directed the Indian Government to facilitate
compliance. This case has led to additional major piracy sites being blocked in India under
the same terms.
IV.

CONSIDERATION OF SITE BLOCKING IN JAPANThe Intellectual Property Strategy Headquarters (IPSH), under the auspices of the JapaneseCabinet Secretariat, has noted in its “Intellectual Property Strategic Program 2018”
published on June 12, 2018, that, due to serious piracy concerns (in particular of manga andanime sites), “emergency measures were just decided on April 13, 2018 at an IPSH anticrime measure cabinet meeting.”54 In addition, IPSH indicated that “future measures anddirection shall be comprehensively reviewed, including legal system improvement related
to site blocking and the examination of debate pertaining to drastic measures against
counterfeit goods and pirated copies” (emphasis added).
This firm statement, along with the Prime Minister’s strong indication that something
different must be done, suggests a paradigm shift in Japan and is the strongest statement todate of Japan’s readiness for a measured site blocking remedy. The fact that therecommendation regarding site blocking now comes before discussion of “indexing sites” isalso notable, and as discussed above, the Ziggo and first Roadshow decisions now firmly
pave the way for torrent, linking, and “facilitation” sites (those that merely make it “easierfor users to ascertain the existence or whereabouts of other online locations that themselves
infringe or facilitate the infringement of copyright”) to be blocked throughout Europe, in the
APAC region, and hopefully, in Japan.
While there certainly remain divergent views, many are coming around to the position thatsite blocking neither violates Article 21(2) of the Japanese Constitution,55 nor Article 4 of
the Telecommunications Business Act (TBA).56 The old view that site blocking may violate
the Constitution and the TBA was supported at least in part by three incorrect assumptions:Intellectual Property Strategy Headquarters (IPSH), Intellectual Property Strategic Program 2018 (知的財産推進計画２０１8), June
12, 2018 (on file with MPA).
55
Japan Constitution, Art. 21(2) provides, “No censorship shall be maintained, nor shall the secrecy of any means of communication beviolated.” 検閲は、これをしてはならない。通信の秘密は、これを侵してはならない.
56
Telecommunications Business Act, Article 4, which provides,
54(Protection of Secrecy)
Article 4.
(1) The secrecy of communications being handled by a telecommunications carrier shall not be violated.
(2) Any person engaged in the telecommunications business shall, while in office, maintain the secrets of others thathave come to be known with respect to communications being handled by the telecommunications carrier. The same
shall apply even after this person’s retirement from office.
（秘密の保護）
第四条 1. 電気通信事業者の取扱中に係る通信の秘密は、侵してはならない。
2. 電気通信事業に従事する者は、在職中電気通信事業者の取扱中に係る通信に関して知り得た他人の秘密を守らなければならない。その職を退いた後においても、同様とする。

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parties.
In a prior paper, it was explained that while an ISP is certainly capable of knowing
information about users requesting access to a website, an ISP does not acquire, by virtue ofsite blocking, any further information that it did not already have access to prior to theblock. Thus, the assumption is incorrect that an ISP obtains knowledge of secret information
when site blocking that would trigger its obligations under Article 4 of the TBA, or
potentially violate the Constitution. The following diagram may be instructive on this point.
Diagram 3

Diagram 4

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As demonstrated by Diagram 4, an ISP does not, by virtue of site blocking, know, acquire,steal, use, or disclose any additional information than it already had access to in the normal
course of communications it handles. The ISP is no more in a position to know, acquire,steal, use, or disclose information when site blocking than when it is not site blocking (in thenormal course of its operations). The German Federal Constitutional Court in GEMA v
Deutsche Telekom was cognizant of the danger of an ISP crossing the line, but concluded
DNS blocking is inherently unproblematic as the establishment of connections is simply
prevented, without access to [the user’s] IP address, and noting, “the (automated) obtainingof knowledge, on the part of the provider, of the circumstances of communication is limited
to that necessary to interrupt the communication.” The German Court wove a path for IP or
URL blocking as well, noting that as long as the data necessary for the implementation of IP
and URL blocks is immediately thereafter deleted using technical means, anonymously,
without trace and without any additional interest in obtaining knowledge thereof, then IP and
URL blocking would not interfere with the secrecy of communications. As noted, temporally,
the ISP alters its DNS server to block the site in advance of any user action, and thenessentially walks away.
In addition, while some may view mechanical detection as a breach of secrecy ofcommunications (obtaining knowledge), the mere knowledge by the ISP of the destination IP
address (i.e., the pirate site) being blocked should not be viewed as a breach of the law,
especially when an ISP is responding to a court order or government directive. The purpose
for which the ISP uses the IP address and URL is what should be important in determining
whether or not the act infringes the secrecy of communications.
Traditional interpretations of secrecy of communications related to letters and telephone calls,
for example, should not be applied to the Internet, which is a public communications medium.
Such interpretations are too rigid. Applying such, the ISPs’ ordinary course of business (e.g.,
the act of acquiring requests for information and controlling the route through its DNS
server) would also arguably constitute infringement of secrecy of communications, but it has
been interpreted that such acts are justified as legitimate business acts.57 In addition, under arigid interpretation, an ISP’s mechanical detections and blocks of suspicious communications
as countermeasures against cyber-attacks could also technically be questioned, but such actsshould be justified particularly if the situation is an emergency.58
It is advisable to reconsider the concept of secrecy of communications for the Internet, and to
make a bold paradigm shift. In the draft of the original Japanese Constitution created by the
GHO after the Second World War, Article 21 paragraph 2 was intended to apply to face-to
face conversations. However, when the phrase was translated into Japanese, there is a highpossibility that it was loosely translated which led to a different interpretation from theauthors’ intended definition.59 Given such circumstances, it is not appropriate to apply
absolute strictness, based on the rule protecting secrecy of communications, to public
communications on the Internet. Further, the public nature of the Internet corresponds to thecurrent legal system including the “Provider Liability Limitation Act.” To be specific, the57
MIC, Second Proposal from “Research Examining ICT Service Problems based on End User Opinions”
http://www.soumu.go.jp/main_content/000067551.pdf.
58
Review Council for Stable Operation of the Internet, “Guidelines for Coutermeasures for Telecommunication Business Operations andSecrecy of Communications”, https://www.jaipa.or.jp/other/mtcs/guideline_v4.pdf.
59
Ikuo Takahashi, Kazuo Yoshida, “Activities on Network Management and Investigation and “Secrecy of Communications””
https://www.jaipa.or.jp/info/2005/iw2005.pdf.

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Provider Liability Limitation Act defines “Specific Telecommunications” as “transmission of
telecommunications aimed at being received by unspecified persons” and it stipulates that
under certain conditions, even if the provider takes actions to prevent transmission of a
specific telecommunication, it shall be exempt from any responsibility in relation to thesender.60 Under the same act, it is stipulated that under certain conditions, the disclosure of
sender’s identification information in a specific telecommunication shall be permitted.61
Moreover, measures to prevent transmission and to permit disclosure of sender identification
information may be sought based on copyright infringement.62 The existence of suchprovisions means that the rule protecting of secrecy of communications recedes when
copyright infringement occurs through public communications. In addition, according to
judicial precedent, “Specific Telecommunications Service Provider” under the Provider
Liability Limitation Act includes transmission providers, and disclosure of a sender’sidentification information is recognized,63 thus site blocking by ISPs who are transmission
providers should also be allowable.
Given what an ISP can actually know about its users’ activities,64 and given the difference
between private communications (e.g., electronic mail) and communications consisting ofuser requests for websites that are publicly available, one consideration for policymakers inJapan may be whether Japan should adopt a narrower definition of communication, similar to
the approach taken by the German Federal Constitutional Court in GEMA v Deutsche
Telekom. Recall that the German Court held, “a site providing links to downloads on theinternet directed at an unspecific number of addressees does not constitute confidential
individual communication, rather it is, as a public offering, not covered by the scope ofprotection” for secrecy of communications under the German Constitution. One might
contrast that with an electronic mail communication, in which there is a one-to-one
communication, and there is the reasonable expectation of privacy in the “non-public
exchange of specific communications of participants.” Indeed, the German Court notes,“communications addressed to the general public are not covered by” protections on thesecrecy of communications under the German Constitution. When examining the strict rightto privacy under the European Union Charter, the Court was similarly emphatic, holding thatsite blocking does not breach the EU Charter of Fundamental Rights, since site blocking of
public offerings of downloads (of infringing copyright material) or access to them does notinterfere with “the confidentiality of communication which is directed at particularaddressees.”
Another concern that has been raised in Japan is that site blocking could result in a decreaseof “access” to information which, under Article 21(1) of the Constitution, may curtail a user’s
right to enjoy access to “all other forms of expression.” The related concern is that site
blocking may amount to “censorship” which under Article 21(2) of the Constitution may not“be maintained.” Such concerns can each be answered when it comes to narrowly focusedsite blocking to halt access to primarily infringing sites. Courts in Europe, when faced withsimilar concerns, have resoundingly sided with rights holders.

60

Article 3 Paragraph 2, Provider Liability Limitation Act.
Article 4, Provider Liability Limitation Act.
62
Provider Liability Limitation Act Guidelines Review Council, “Guidelines related to Copyright under the Provider Liability Limitation
Act” and “Guidelines related to Disclosure of Identification Information of the Sender under the Provider Liability Limitation Act”.
63
Hanketsu Minshu, Vol. 64, Issue 3, p. 676, Supreme Court Decision April 8, 2010.
64
Upturn and Storm.
61

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In Newzbin 2, Arnold J held that, balancing the “proportionality” between a copyrightowner’s ability to protect its rights by requesting an order to disable access to a flagrantly
infringing website, with the right of freedom of expression, favors the copyright owner. Thisis so particularly when an order sought is clear and precise, does not overly tax an ISP (i.e.,the measure requested is one which the ISP already employs, albeit for a different purpose),is technically feasible, is not overly costly, and can easily be varied or discharged if future
events warrant.65 The rights to be balanced are no doubt important, including under the
Human Rights Act 1998 (U.K.), and mainly Article 10 of the European Convention on
Human Rights, which includes in the right of freedom of expression the right “to receive andimpart information and ideas without interference by public authority and regardless offrontiers,” balanced by “such formalities, conditions, restrictions or penalties as areprescribed by law….”66 Justice Arnold resoundingly finds that, taking all matters into
account, the remedy of site blocking is proportional and justified as being “prescribed bylaw.”
The key concern regarding censorship appears to be the possibility of “overblocking.”67
There are concerns regarding overblocking that all responsible parties, including
governments, ISPs, and rights holders should be aware of. For example, because IP addresses
can be shared, there is a risk of overblocking if IP address blocking is applied without due
care to ensuring the IP address block does not ensnare non-infringing sites. These concerns
can readily be addressed, however. Mainly, they can be addressed through providing ISPs
with choices as to blocking method which, if done properly, will result in blocking only the
primarily infringing site.
As Japan considers how best to implement site blocking, two approaches emerge for revisionof the law to introduce site blocking, divided into the following: (1) revising the Copyright
Law by establishing the right for a right holder to demand a no-fault injunction against an ISP
to cease providing an infringing website, and/or (2) revising the Provider Liability Limitation
Act to clarify ISPs are exempt when they undertake the act of site blocking. Regarding theformer, as in Article 97A of the UK's Copyright, Designs and Patents Act 1988, if there isactual recognition that the service is being used for copyright infringement by the ISP, one
method would be to stipulate that the copyright holder has a right to demand an injunction
against the ISP under the law. It goes without saying that the approach under (1) is desirablefrom the viewpoint of enhancing the effectiveness of the injunction remedy in Japan andsufficiently protecting the interests of the copyright holders.
On the other hand, revising the Provider Liability Limitation Act clarifying ISPs are exempt
if they undertake the act of site blocking will provide ISPs with certainty while effectively
protecting rights holders. Since “Specific Telecommunications Service Provider” under theProvider Liability Limitation Act according to judicial precedent is interpreted as includingtransmission providers, expanding the scope of indemnification provided under Article 3,
paragraph 2 of the same law to include access blocking by the transmission providers could
be a relatively simple fix. However, since that Act does not regulate the obligations of an ISP
but merely clarifies exemptions, such a change may not create the mandate needed to protect
copyright owners’ rights. Therefore, considering the current situation where distribution of
65

Twentieth Century Fox and others v British Telecommunications plc, [2011] EWHC 1981 (Ch) (Newzbin 2), para. 177.
Id. para. 77.
Ryoji Mori, Regarding the Legal Problems of Blocking, Okinawa ICT Forum 2011,https://www.jaipa.or.jp/event/oki_ict2011/anshin_hou.pdf., e.g., p. 24.
66
67

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infringing contents on the Internet is becoming a major societal problem, the approach under(2) would likely, without (1), be insufficient.
V.

CONCLUSION

Site blocking has proved to be an effective remedy against online infringement, and theeffects of site blocking are also shown to divert users to legitimate platforms for content
which are being more readily available in more formats than ever before. Given the size ofthe piracy problem in Japan, the time has come for Japan to join the company of 45 nations
having, or obligated to have, such a remedy in place. Providing a narrow and workable
remedy for infringing sites will serve the IP system in Japan, support Japanese and overseas
creators, and educate the Japanese people of the true harm caused by infringement, including
lost opportunities, revenues, and jobs in Japan’s creative sector. The old view in Japan heldby some at MIC and other organizations that site blocking, except in truly exceptional
circumstances, generally violates the Constitution and the TBA, may be based on someincorrect assumptions about how site blocking works, and may need reconsideration,
including a revised notion of “communication” for the Internet age. For example, it isincorrect to assume that ISPs acquire knowledge in violation of the TBA rule againstinterfering with the secrecy of communications. The fact is ISPs already are capable ofknowing this information whether they block or not. ISPs do not know, acquire, steal, use, ordisclose any secret information about their users’ information as a result of engaging in site
blocking. Since ISPs stand in essentially the identical situation with respect to secret
information whether they block or do not block, site blocking in Japan constitutes noviolation of the Constitution or the TBA. Other jurisdictions, including Germany and the
U.K., do not find any conflict between site blocking and fundamental rights of privacy or
freedom of expression.