By Ahmad Hathout
OTTAWA – A hearing that culminated in an unprecedented federal court order forcing internet service providers to block certain websites was unbalanced and will likely fall by the wayside as more intervenors weigh in at the appeal level, according to emails from a CRTC lawyer.
“What I would like to see is a re-do of the Federal Court motion,” William Abbott said in an email to an address that is redacted in newly unveiled communications obtained through access to information law. Abbott is a former Bell lawyer who took a legal counsel role at the CRTC in 2018.
Canada’s first ever judicial blocking order came after Bell, Rogers and Quebecor brought an application before the federal court asking it to ban defendants behind GoldTV from operating websites and selling equipment that allegedly delivered pirated TV content. The telecoms subsequently presented their site blocking motion to the court as a method to restrain the defendants.
“It was pretty one-sided,” Abbott said of the hearing. “Teksavvy did provide some counter arguments,” but the rest of the sentence is redacted. The CRTC, which has been quiet on the matter, was not involved in the court case in any capacity.
TekSavvy was the only ISP that opposed the site blocking motion. The Chatham-based company argued that site blocking was not appropriate, as it ran afoul of net neutrality principles and, in any case, any blocking application has to consult the CRTC. Eastlink, SaskTel, Shaw, and Telus were among the third-party respondents that took no position on the blocking motion, effectively leaving TekSavvy as the lone opposition. It has appealed the ruling.
In his summary of the decision, Abbott noted that judge Patrick Gleeson “did not thoroughly analyze net neutrality, but confirmed an underlying principle of the ‘common carriage doctrine’ in which a carrier cannot be obliged to receive or facilitate access to goods or services that are illegal.’” Abbott also sought to review how the order addressed Section 36 of the Telecommunications Act and “improper blocking.”
TekSavvy filed its appeal of the decision in November, arguing that judge Gleeson erred when he ruled that ISPs do not need to consult with the CRTC before blocking the websites and that blocking can be found in the Copyright Act. Section 36 generally requires Commission approval if a telecom wants to influence what goes on its network.
The CRTC has previously said – and judge Gleeson confirmed – that Section 36 does not give the Regulator the power to mandate site blocking or to get into enforcing copyright, but can only authorize the blocking act.
Back in 2018, the CRTC said an application brought by an industry coalition called FairPlay Canada requesting the CRTC approve a regime that would facilitate website blocking on a larger scale to combat piracy was not something it could deliberate on because a decision on that basis would trample on the authority of Parliament to set copyright law. Gleeson agreed with the reasoning.
“I see the underlying issue being the ongoing struggle to find a way to protect online IP in Canada in a proportionate way,” Abbott said in a November 22 email to someone asking whether, in a communications law course, a “mock CRTC hearing is a good setting for a federal court motion exercise.”
But Abbott said he didn’t see the order holding muster as more arguments are heard on the matter. “There have been several false starts, FairPlay, Voltage 1.0, Voltage 2.0 and I suspect that GoldTV will end up being a false start,” Abbott added.
When asked for comment, CRTC spokeswoman Patricia Valladao pointed to the CRTC’s decision in the FairPlay application.
Shortly before the blocking order was handed down, the Federal Court ruled against movie studio Voltage’s bid to certify a class of 55,000 alleged copyright infringers to sue in one trial. It was among the most high-profile copyright cases that experts said was a major victory for Canadian internet users, notwithstanding a successful appeal of the decision.
As well, in September 2018, the Supreme Court of Canada ruled ISPs – in that case, Rogers – can charge fees associated with disclosing the personal information of alleged infringers to rightsholders, which represented a setback for Voltage.
“I anticipate that if the [blocking] appeal goes ahead, the interveners will come out of the woodwork and create a more balanced record for a decision,” Abbott said in another email.
“Too bad the factual record can’t be improved,” he said.
A number of prospective intervenors have filed – or intend to file – applications to challenge the order, including the Canadian Internet Policy and Public Interest Clinic (CIPPIC), the Canadian Internet Registration Authority (CIRA), Music Publishers Canada, the International and Confederation of Music Publishers, and the British Columbia Civil Liberties Association (BCCLA).
CIPPIC and CIRA argue in their application for leave to intervene that site blocking should be viewed as an extraordinary measure used in only exceptional cases. CIPPIC said it is an “intrusive remedy that is incompatible with the right to free expression, the legislative balance between copyright holders’ and users’ rights that sits at the heart of the Copyright Act, and principles of common carriage” in the Telecommunications Act, as well as having the potential to disrupt communications networks and innovation.
Also arguing that site blocking should only be used sparingly and in rare cases, the BCCLA said in its application to intervene that any blocking order should be viewed with a lens to how it would impact free expression. It said the court should look into the scope of a blocking order, its potential to capture legitimate content, and the potential that it could place a “chilling effect” on the defendant’s dissemination of legitimate material.
“In other words, site-blocking orders should not be granted where the plaintiff has failed to exhaust other avenues of traditional relief…or where there is good reason to doubt the effectiveness of the site-blocking order,” the BCCLA submission said.
Abbott left Bell in 2017 as assistant general counsel and privacy ombudsman after 17 years at the company, according to his LinkedIn page, where it says he “provided industry input on public policy issues including proposed federal and provincial legislation” and “managed Canadian Radio-television and Telecommunications Commission proceedings.”
In the same year Abbott left, Bell was the first to present to a House of Commons committee some version of a site blocking regime that would order ISPs to block certain websites that hosted or promoted piracy. The system would effectively have an agency that aggregates a list of illegal websites for ISPs to block, which would be overseen by the CRTC.
That idea later morphed into the FairPlay coalition, an organization made up of more than 25 industry players. “The [Federal Court] decision is the next step in the process relating to Bell et al’s unsuccessful FairPlay application to the CRTC,” Abbott noted in another email.
Having been rejected by the CRTC as a matter outside its jurisdiction, FairPlay also had a chance through the broadcasting and telecommunications legislative review panel. Released late January, the panel’s final report did not make a recommendation on site blocking – while highlighting other methods such as search index removal – only saying “we defer to other fora on whether the Copyright Act needs to be amended to develop other processes for obtaining blocking orders.”
