By Ahmad Hathout
OTTAWA – The Federal Court of Appeal has dismissed an appeal challenging a lower court’s decision to force internet service providers to block the websites of a company that sold unlicensed TV content.
The appeal court ruled Wednesday the Federal Court’s November 2019 website-blocking order against GoldTV was appropriate and did not step on the CRTC’s jurisdiction, as the court had the ability to unilaterally make such an order. The decision also said the order did not interfere with net neutrality principles because the blocking ISPs are not controlling or influencing the content or traffic on their networks.
TekSavvy, which brought the appeal, had argued such an order circumvented Section 36 of the Telecommunications Act – which the regulator administers – because the blocking order could only be rubber stamped by the CRTC as the final decision-maker.
But the court said that section of the law “does not displace the Federal Court’s equitable powers of injunction, including the power to impose a site-blocking order.” The court said if the legislation was intended to have a two-step process, it would have explicitly stated that. The decision corrects the position, even held by some of the largest ISPs who backed the blocking order as outlined in the ruling, that the CRTC needed to sign off on the order.
The November 2019 decision by the Federal Court was the first time the country has seen a legal order to block websites. The court heard arguments in March, where TekSavvy maintained a site-blocking mechanism should be formalized and dealt with by Parliament.
In Wednesday’s decision, Justice George Locke, writing with concurrence from the two other justices, noted that the unprecedented order was not limited by the Copyright Act either, despite TekSavvy arguing Parliament crafted the legislation to avoid that outcome.
The large independent ISP argued Parliament provided a system known as notice-and-notice — where an infringer is notified that the rightsholder is aware of the activity before more severe action is taken — rather than a U.S.-style notice-and-takedown regime because it wanted to avoid site-blocking.
Locke didn’t buy it. “The fact that Parliament has put in place a regime to notify an alleged copyright infringer that its activities have come to the attention of the copyright owner does not suggest that this represents a limit on the remedies to which the copyright owner is entitled,” the decision read.
Locke compared the site-blocking order to a court-ordered information disclosure, where a rightsholder can get a court to force an ISP to divulge the identities behind infringing IP addresses. He noted that there is no explicit provision, either, for what is called a Norwich order, yet there hasn’t been a contest on that point.
TekSavvy also sought to detach the comparisons between site-blocking and a previously-upheld Supreme Court decision in Equustek. In that case, the highest court upheld a de-indexing order from a British Columbia court which forced Google — an intermediary like the ISPs in this case — to de-index a website that allegedly sold intellectual property-infringing products. The court disagreed, saying that case is “good authority for availability of a site-blocking order.”
The decision also turned away the argument that the order infringes on freedom of expression issues.
The Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic (CIPPIC) said in a statement that it “is disappointed with the outcome given the intrusive nature of ISP-based website blocking as a remedy.”
As an intervenor in the case, CIPPIC argued that site-blocking 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 copyright legislation and the Telecommunications Act.
The legal clinic out of the University of Ottawa argued existing legislation already has extensive measures that copyright holders can resort to in the event their rights are being infringed, and that only after all those avenues are exhausted can there be a consideration of site-blocking as a last and exceptional resort.
The blocking order, now upheld by the second-highest court, can still be appealed to the Supreme Court of Canada.
After TekSavvy appealed the original blocking order, federal officials in the department of Innovation Canada contemplated in a briefing note a situation where a dismissed appeal would mean less pressure to implement additional measures to combat piracy in the Copyright Act review.
In a consultation document released last month, the department has outlined a proposal to cement some kind of court-sanctioned website-blocking mechanism in the legislation.