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Not a Block and White Issue: Canada’s First Site-Blocking Order

The Federal Court of Canada recently issued Canada’s first ever site blocking order in Bell Media Inc v GoldTV Services, 2019 FC 1432 (Bell Media). In Bell Media, the court compelled Canadian internet service providers (ISPs) to take steps to block their customers from accessing websites operated by pirate streaming sites GoldTV.biz and GoldTV.ca.

The plaintiffs (Bell and Rogers) broadcast a variety of programming through their online streaming services. Bell and Rogers first began pushing the CRTC, Canada’s media regulatory agency, to create a blacklist of piracy sites and to require all Canadian ISPs to block such sites. When the CRTC concluded that it lacked jurisdiction to grant injunctions based on the underlying copyright issues, Bell and Rogers commenced a lawsuit in Federal Court.

The Federal Court in Bell Media adopted several principles set out by the Supreme Court of Canada in Google Inc. v. Equustek Solutions Inc, 2017 SCC 34 (Equustek), including the availability of injunctive relief against entities who are not parties to the litigation. Availability of this remedy is grounded on the basis that whilst third parties themselves have not engaged in any wrongdoing, the third parties are in a position to facilitate the harm. The Federal Court additionally agreed that the fundamental question should be whether granting an injunction is just and equitable in the circumstances.

Courts in the UK have considerable experience in making site-blocking orders, and as a result, have developed a list of factors for assessing whether granting a site-blocking order is equitable. The Federal Court considered the following list of factors set out by the UK Court of Appeal in the case Cartier International AG v. British Sky Broadcasting Ltd., [2016] EWCA Civ 658:
• whether the injunction is necessary to protect the plaintiff’s rights;
• the effectiveness of the injunction in discouraging users from accessing the infringing services;
• whether parties not currently accessing the infringing service will be dissuaded from doing so;
• the complexity and cost of implementing the injunction;
• whether the injunction creates barriers to legitimate use;
• whether the injunction strikes a fair balance between the rights of the parties, relevant third parties, and the general public;
• the extent to which blocked websites can be substituted for another infringing website; and
• whether the injunction includes measures that safeguard against abuse.

Ultimately, the Federal Court concluded that making a Canada-wide blocking order was ‘just and equitable’ in the circumstances and granted an order requiring third party Canadian ISPs to block users from accessing a set of IP addresses associated with the infringing GoldTV services.

The injunction was opposed by TekSavvy, another Canadian ISP, who raised many policy concerns about site blocking. Amongst other points, TekSavvy argued that granting a site-blocking order would create a precedent that could ultimately see ISPs faced with hundreds or even thousands of site-blocking orders. Further, it could be seen as problematic that only large copyright holders would stand to benefit from this decision. In the absence of an administrative regime, extensive evidence would have to be supplied in court alongside large procedural expenses to prove that future instances of site blocking are necessary. On November 25, Teksavvy filed a notice of appeal with the Federal Court of Appeal.

This case, along with the Equustek case, signals that Canadian courts are more willing to regulate the internet, where internet regulation was traditionally thought to be in Parliament’s realm. In Equustek, the Supreme Court of Canada issued an order requiring Google to remove all instances of a company’s website, which was selling infringing products, from its world-wide search engine. Critics fear that this Federal Court decision could lead to further censorship of the internet and therefore argue that site blocking should only be used as a last resort.

Proponents of the case, however, argue that this is a 21st century solution to blocking illegal activity, and that with the proper safeguards in place, site blocking does not result in the censorship of the internet. They note that all other reasonable avenues had been pursued by the plaintiffs prior to seeking an injunction. GoldTV, like many other piracy services, were located offshore and shrouded in anonymity to escape the reach of domestic authorities, leaving IP address blocking as the only reasonable option.

In 2018, the Intellectual Property Association of Japan noted that 45 countries offered judicial and/or administrative remedies for blocking sites that delivered infringing content. With this decision, Canada now joins these countries in providing a solution for stopping the proliferation of internet services which facilitate copyright infringement, subject to any different decision being reached on appeal.

 

 

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