Disabling Access to Infringing Offshore Websites (Site Blocking) and Free Speech on the Internet: There is no Contradiction

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If a transparent, government-regulated mechanism, with an appeal process, was put in place to require ISPs in Canada to block access to offshore pirate websites that “blatantly, overwhelmingly or structurally” engage in or facilitate copyright infringing activities, would that constitute a “dangerous, anti-speech and anti-consumer proposal”? Apparently so, according to anti-copyright commentator Michael Geist, echoed by US online magazine, TechDirt, which headlined its story Canadian ISPs And Hollywood Agree On Plan To Make Themselves Judge, Jury and Website Executioner”. Clearly hyperbole knows no national boundaries.

Let’s unpack Prof. Geist’s comments for a moment. How would such a mechanism be dangerous, and if so, to what or to whom? He argues that this proposal, reportedly developed by Bell Media for submission to the CRTC and tentatively labelled the “Internet Piracy Review Agency” (IRPA), would

invariably lead to demands that it expand to other areas. Whether fake news, hate speech or unlicensed content, if blocking websites without even court oversight is viewed as fair game, the CRTC will face a steady stream of demands for more.”

This statement implies that the danger is to free speech and freedom of expression on the Internet. Yet the proposal, as I understand it (the documents have not been made public although the online investigative website Canadaland apparently obtained copies and has shared them with Dr. Geist) is specifically targeted at egregious offending websites that engage in diffusion and promotion of copyright infringing material belonging to others. Even the proposed name of the review body, the Internet Piracy Review Agency, indicates clearly the limits of its mandate. To equate this proposal with other unrelated issues is to roll out the old “slippery slope” argument that any crack in the supposedly sacrosanct façade of free speech on the internet is to be fought tooth and nail. Once again, more hyperbole. There is no more, and no less, right to free speech on the internet than there is in the offline world. There are already limitations on certain forms of communication over the internet, in Canada and elsewhere around the world, with blocking of child pornography being the most obvious example, and this has not led to an undermining of democratic values. Pirate websites are routinely blocked in Australia and the UK. Are these not democratic regimes that respect free speech?

According to Geist, the proposal is also “anti-consumer”. How is blocking access to illicit and illegal content anti-consumer? That is like saying laws against shoplifting are anti-consumer because they deny to the consumer something that he or she thinks they want but are not prepared to pay for. In fact, site blocking will not only prevent consumers from wittingly or unwittingly accessing pirated material, it will protect them from the nasty side effects that often come with visiting offshore pirate websites. These are things like exposure to viruses and malware, and advertisements for high-risk or unregulated products. A study conducted by the Digital Citizens Alliance found that one out of three content theft sites exposed users to malware (such as Random Access Trojans, or “RATs”), and that internet users who visited such sites were 28 times more likely to get malware from these sites than from mainstream websites or licensed content providers. By preventing growth of piracy, a site-blocking regime will not only protect consumers from risks but also ensure that their dollars are directed to legitimate content sites, thus ensuring further production of new and compelling content, itself a further direct benefit to consumers.

Why is site blocking coming to the fore at this time? The explanation is easy. As technology has advanced and changed, the threat from content piracy has also changed. Whereas once the main concern was illicit camcording and sale and distribution of illegal DVDs, the pirates’ distribution channel of choice is now internet streaming, normally from websites outside the jurisdiction of the content owners, and thus impossible to shut down. An elegant solution is, in effect, to apply national law at the electronic border by requiring ISPs to block access to listed offshore pirate websites. This is what is being done in Australia, the UK and in more than 40 countries around the world. It has proven to be highly effective and there is no reason why it could not be equally effective in Canada.

In the UK and Australia, the disabling of access is accomplished through the courts, whereas in some other jurisdictions, notably Italy, Portugal, Korea, Indonesia, and Malaysia, it is done through an administrative tribunal similar to the one apparently proposed by Bell. The Canadaland report indicates that Bell Media, Cineplex and the Quebec theatre chain Cinémas Guzzo support the creation of an IPRA although other groups may also be lining up behind the proposal. For example, in a conference in Ottawa last month, the chief legal officer for the Canadian Media Producers Association (CMPA) came out publicly in favour of site blocking. We won’t know who is in support until the proposal is formally filed with the CRTC, which could be at any time. Other major ISPs, such as Rogers and Shaw also support site-blocking but have not yet publicly pronounced on this particular proposal. In its submission to the CRTC consultation on broadcasting, Shaw stated:

the CRTC should consider using its authority under Section 36 (of the Telecommunications Act) to approve court orders for ISPs to block access to online services infringing Canadian copyright law.”

One of the obstacles that Bell, Shaw and others face is that even if the actions of an offshore website can be proven in court to violate Canadian copyright law, Section 36 gives the CRTC authority to order blocking of a website. Section 36 of the Telecommunications Act says,

“Except where the Commission approves otherwise, a Canadian carrier shall not control the content or influence the meaning or purpose of telecommunications carried by it for the public.”

Shaw notes in its submission that there is a real possibility of a conflict between a court order against a website found to be enabling infringement and the CRTC’s administration of its own legislation.

“It would be a significant impediment to the future economic growth of Canada’s creative sector, as well as to the promotion and development of Canadian content and legitimate Canadian distribution platforms, if rightsholders were denied access to an effective tool to combat online piracy because the CRTC prevented ISPs from complying with a court order. It would also put Canadian ISPs (which both Shaw and Bell are) in the untenable position of either being in breach of a court order or in breach of section 36 of the Telecommunications Act”.

This dilemma of being caught between the Scylla of the courts and the Charybdis of the CRTC may explain why Bell is proposing an administrative body whose decisions would be enforced by the CRTC, rather than pursuing action through the courts which can be a notoriously slow and inefficient process. If the Telecommunications Act gives the CRTC the authority to order ISPs to block certain content, with or without a court order, why not deal directly with the body that has the power and authority? In a situation where an administrative body such as the IRPA was set up, this body would make recommendations to the CRTC which in turn would order ISPs to comply.

We will have to see the details of how the process might work, but clearly there would have to be a challenge or appeal function to ensure that blocking orders target only sites that are blatant offenders whose sole or primary business model is to free-ride on the content of others. The CRTC already has a review mechanism and, furthermore, CRTC decisions can be appealed to Federal Court. This would seem to provide more than adequate protection for intervenors opposed to any particular blocking order.

According to press reports the proposed IPRA would be composed of representatives of “rights holders, broadcasters, ISPs, and consumer groups”. Michael Geist thinks it should also include what he calls “independent voices or free speech or civil liberties groups”. One would think that consumer advocates could cover the function of protecting consumers adequately but Prof. Geist no doubt has in mind including EFF-types whose sole mission would be to oppose any reasonable blocking order. Let’s hope that doesn’t happen.

The issue has even become tangled in the current “net neutrality” debate where Canada, unlike the US, has stated firmly that it will support net neutrality. The Canadian government does not support “zero-rating” where ISPs can promote their own content (by not charging for the bandwidth consumed) over other internet traffic, nor the concept of allowing ISPs to provide “fast channels” to some content providers in return for payment. ISPs have been informed that they must continue to treat all internet traffic equally in terms of access. But let’s not confuse access to legal content with access to content that infringes the rights of others (such as child pornography, promotion of terrorism, hate speech—and yes, copyright infringement). Blocking illegal and infringing content, following due process, is not a net neutrality issue and should not be confused with it. As far as I know, no one is suggesting that the Supreme Court of Canada’s recent ruling which requires Google to block search results for an offshore website that has been found to be infringing the intellectual property rights of a Canadian company, Equustek, offends net neutrality.

At this point, it is not clear what the next steps will be. Clearly a consensus is developing among a number of content stakeholders in Canada that something needs to be done about illicit offshore streaming sites. Whether the process of deciding which sites to block is effected through a review body like the proposed IPRA, making recommendations to and operating in close cooperation with the CRTC, or a through a court process (which the CRTC would need to respect), I am sure that we will be hearing more about blocking access to copyright theft sites in Canada in the weeks and months to come. And, by the way, free speech on the internet and consumer welfare will continue to do just fine.

© Hugh Stephens, 2017. All Rights Reserved.

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