The reach of Australia's site-blocking regime continues to grow, with academic cheating services the current target. This has been highlighted in a recent judgment by the Federal Court in Tertiary Education Quality and Standards Agency v Telstra Corporation Ltd [2021] FCA 1202. This is the first judgment that has been delivered concerning the application of provisions of the Tertiary Education Quality and Standards Agency Act 2011 (Cth) (TEQSA Act).
The TEQSA Act enables the Tertiary Education Quality and Standards Agency (TEQSA) to apply for an order requiring a carriage service provider – in this case, internet service providers (ISPs) – to disable access to online locations that facilitate violations. These violations are specifically those under ss 114A or 114B of the TEQSA Act, which prohibit providing or advertising academic cheating services.
History of site-blocking powers in Australia
Section 127A was first introduced into the TEQSA Act via the Tertiary Education Quality and Standards Agency Amendment (Prohibiting Academic Cheating Services) Bill 2019 (Cth). The explanatory memorandum explains that:
Section 127A will be particularly important to reduce the visibility of, and ease of access to, overseas websites that provide or advertise cheating services. While prosecution of overseas website operators and content authors may be difficult, blocking of these sites by internet service providers…is an action that can be taken from within Australia and will go some way to reducing their availability and impact.
While the use of site blocking to prevent academic cheating is new, the Federal Court has been afforded the power to make site blocking orders in a number of other contexts. These contexts including in respect of websites that have the primary purpose or effect of infringing, or facilitating the infringement, of copyright. You can read more discussion about this in the following:
Since the introduction of the provision in 2015, there have been 14 applications for site blocking orders made pursuant to s 115A of the Copyright Act 1968 (Cth) (Copyright Act). All such applications have been successful.
Outside of the context of the Federal Court, the eSafety Commissioner issued an order to ISPs to block a livestream of the Christchurch terrorist attacks in 2019. This order was made under the powers conferred by s 581 of the Telecommunications Act 1997 (Cth) (Telco Act). This was the first instance of those powers being used for the purpose of content blocking.
Since that order, the eSafety Commissioner, government, and industry have developed a protocol for the use of these powers. This was based on a recommendation by the Report of the Australian Taskforce to Combat Terrorist and Extreme Violent Material Online, delivered in June 2019. The protocol specifies that it will be activated following an 'online crisis event' that generates material that 'promotes, incites or instructs in terrorist acts or violent crimes'.
Importantly, carriers and carriage service providers are also under a duty pursuant to s 313 of the Telecommunications Act 1997 (Cth). This duty is to do the carrier’s or provider’s best to prevent telecommunications networks and facilities from being used in, or in relation to, the commission of offences against the laws of the Commonwealth, or of the States and Territories.
The Australian Communications and Media Authority (ACMA) has made a number of requests to ISPs to block access to sites. This has been where serious criminal or civil offences, including contraventions of the Interactive Gambling Act 2001 (Cth) were involved. Since ACMA made its first site blocking request in 2019, over 263 illegal gambling websites have been blocked.
TEQSA v Telstra Corporation Ltd
In this matter, the Federal Court ordered various Australian ISPs to take reasonable steps to disable access to two online locations:
- assignmenthelp4u.com
- assignmenthelp2u.com
The websites operating from these online locations appeared to operate out of India. They advertised, or published advertisements, to students undertaking courses in Australia offering services such as essay writing for a fee.
Application of s 127A TEQSA Act
The application was made by TEQSA, pursuant to s 127A of the TESQA Act. Unlike s 115A of the Copyright Act, there is no requirement that the online location has the primary purpose or effect of contravening, or facilitating a contravention of, the prohibitions against advertising or providing academic cheating services. However, the Court must take into account a number of factors, including whether disabling access to the online location is a proportionate response in the circumstances.
In this case, the online location assignmenthelp4u.com was first discovered by TEQSA. Emails were sent to the contact addresses listed on the website, informing the operators that:
- they were violating the TEQSA Act; and
- TEQSA would be applying for an injunction.
After the second email was sent, the website was no longer accessible.
Around the same time, TEQSA discovered the second online location (assignmenthelp2u.com) and observed that it was very similar to the first website. It was determined that:
The similarity, and at times identical aspects of the ‘assignmenthelp2u.com’ site, in addition to the timing and context in which it became accessible, readily gives rise to the conclusion that the site is another iteration of the first site.
TEQSA also attempted to contact the of the second URL, but received no response. This was considered to be a reasonable effort to serve the application. TEQSA submitted that, while the first online location was not available online at the time of the hearing, there was no evidence to suggest it had been permanently abandoned by the operators. The domain may have even been for sale.
Application of s 115A Copyright Act
Reasoning from Roadshow Films Pty Ltd v Telstra Corporation Ltd [2017] FCA 965 (Roadshow), a decision under s 115A of the Copyright Act, was adopted in this case. TEQSA submitted, and the Court accepted, that it could be inferred that if the Court orders ‘assignmenthelp2u.com’ to be blocked, but not ‘assignmenthelp4you.com’, the operator would recommence the contravening conduct from the latter site. This inference was drawn in the context of the following:
- the lack of response to TESQA's request that the operator cease to provide academic cheating services;
- the operator moved the services to the second online location soon after receiving the request; and
- the operator disabled the homepage of the second online location soon after the proceedings commenced, but left the substantive pages of the website online.
In Roadshow, six online locations had become unavailable during the course of proceedings, and were not available at the time the orders were made. In the absence of any evidence to suggest the online locations may not infringe, or facilitate the infringement of copyright in the future, the Court was prepared to make orders in respect of those six online locations.
What does this mean for the future of site-blocking?
While injunctions were ordered in this matter, it is clear that cheating services are still widely available and advertised in Australia. As of 12 October 2021, a search on Google for 'cheat uni assignment service' showed three paid placements advertising the same or similar services touted by assignmenthelp4u.com and assignmenthelp2u.com. TESQA Chief Executive Officer, Alistair Maclean, has said:
This decision supports TEQSA’s ongoing work to reduce the risk posed by commercial academic cheating services to student interests and the reputation and standing of Australian higher education.
It will be interesting to see whether this serves as a test case, whether we will see more legal action from TESQA moving forward, and whether this will embolden the Federal Government to enact further specific site-blocking powers.
