Unprecedented website-blocking order correct, says Federal Court of Appeal

The Federal Court was correct in its unprecedented decision to grant a website-blocking order in a copyright infringement action, the Federal Court of Appeal has found.

In Teksavvy Solutions Inc. v. Bell Media Inc., released May 26, Justices George Locke, René LeBlanc and Marc Nadon considered whether the Federal Court has website-blocking power and whether such authority engages the fundamental Charter right to freedom of expression.

“In terms of importance in the copyright domain, it confirms that the power to grant injunctions is a broad, flexible one that can be used to help fight copyright piracy, whether it's by website blocking, or blocking servers, or some other type of relief,” says Barry Sookman, senior counsel at McCarthy Tétrault LLP.

Alyssa Quinn, policy program manager at Canadian Internet Registration Authority (CIRA), says website-blocking is the bluntest available instrument to use against online copyright infringement. CIRA is in charge of domain registry for .ca websites and was an intervenor in the case.

“Website blocking at the ISP level should be a remedy of absolute last resort,” she says. “There are other intermediaries closer to the actual infringing content that the plaintiffs could have gone to, in order to more precisely and proportionally deal with this particular case of copyright infringement.”

The issue in Teksavvy Solutions Inc. v. Bell Media Inc. arose in Nov. 2019. The Federal Court issued an interlocutory order requiring several Canadian internet service providers (ISPs) to block access to an unauthorized subscription service operating under the domain names goldtv.biz and goldtv.ca. Seeking the order was Bell Media Inc., Groupe TVA Inc. and Rogers Media Inc.

An ISP involved, Teksavvy, opposed the motion, arguing it should be up to the Canadian Radio-television and Telecommunications Commission (CRTC) to block websites, not the Federal Court, and that the plaintiffs had not met the legal test for the order’s issuance.

A problem in the case was that Canada currently lacks an “explicit statutory framework” to use as guidance for website-blocking, says Quinn. The Court had to “do a bit of reading between the lines” of the Copyright Act and the Telecommunications Act to come to their decision, she says.

Monday happens to be the last day submissions are open in Innovation, Science and Economic Development Canada’s “Consultation on a Modern Copyright Framework for Online Intermediaries.”

In CIRA’s submission, the group laid out “a set of progressive principles to be followed before blocking orders are considered,” says Quinn.

“There's this kind of hierarchy of online intermediaries, in order of who is closest to the infringing content, has the closest relationship with the person or entity engaging in the in the infringing content,” she says. “And I can tell you that the internet service provider is the absolute furthest away in that relationship.”

In Teksavvy Solutions Inc. v. Bell Media Inc., the breadth of the Court’s order could be used to make “dynamic injunctions” and “live orders,” says Sookman. A dynamic injunction allows the injunction order to be updated to deal with circumvention and a live order can be made to block a server at a certain time. The latter is used in Europe “all the time” during the broadcasts of football matches, he says.

Sookman is former co-chair of the firm’s Technology Law Group, former head of the Internet and Electronic Commerce Group and former head of the Intellectual Property Group. He has written several books on IP and IT.

The Court also recognized that precedents from other jurisdictions which are experienced in dealing with website-blocking orders “are properly taken into account,” says Sookman. Federal Court Justice Patrick Gleeson considered principles expressed in a UK case, Cartier International AG v. British Telecommunications.

“And that continues a trend that we've seen. The British Columbia Court of Appeal did that in [Equustek Solutions Inc. v. Google Inc.] The Supreme Court also made reference to foreign cases,” he says. “And I think that's useful as Canadian laws get harmonized with other jurisdictions that have more experience in dealing with these sorts of things.”

The Federal Court of Appeal also “clearly debunked” the argument website-blocking orders would breach net neutrality, and clarified that s. 36 of the Telecommunications Act does not prevent courts from such orders, says Sookman.

“And I think that's really important, because these kinds of orders can apply, not just for copyright, but could be used to protect the Canadian public against all kinds of threats, including online terrorist material, or pornographic material, or harassment material or potentially even major data breaches.”