Canada’s First Piracy Site Blocking Decision is Under Appeal: What are the Issues and What’s at Stake?

Last week I wrote about the ground-breaking Federal Court decision that granted the request from Rogers Media, Bell Media and GroupeTVA to issue an injunction requiring Canadian ISPs to block pirated streaming content from offshore content provider GoldTV. This is the first such “site-blocking” order issued in Canada, although such orders are relatively commonplace in a number of other jurisdictions. The order was unopposed by all respondents in the case, which included all of Canada’s major ISPs, and some smaller ones, with the exception of Teksavvy, a small reseller of ISP access based in southern Ontario. Ten days after the order was issued, Teksavvy filed an appeal.

In its appeal, Teksavvy listed a number of objections to the decision, including the fact that the judge had decided the court had jurisdiction to hear the case under the provisions of the Copyright Act. Teksavvy argued that since Parliament did not include specific reference to site blocking in the most recent (2012) revisions to the Act, the court should not provide a remedy that Parliament had declined to make available.  Justice Gleeson rejected this argument, noting that;

“Parliament’s choice not to adopt a site-blocking regime does not equate to Parliament prohibiting this Court from exercising its equitable jurisdiction to issue a site-blocking order”.

Gleeson noted that the Copyright Act provides a rights-holder all injunctive remedies available in law for infringement, including the right to seek relief against a non-party where the non-party (the ISPs) facilitate, even innocently, the harm. He concluded that the broadly stated entitlement to relief in the law was inconsistent with the argument that Parliament’s failure to explicitly legislate site blocking equated to an implicit intent to deny such a remedy in law.

Some countries have indeed passed explicit legislation laying out the conditions under which site blocking can occur, the best example being Australia’s Copyright Amendment (Online Infringement) Bill passed in 2015, whereas others have simply applied existing legislation. This is what has happened in India, for example, a path now being followed in Canada. In Australia, specific legislation was enacted allowing rights-holders to apply to the Australian Federal Court for an injunction compelling ISPs to block offshore websites whose “primary purpose” was to distribute infringing material or facilitate the infringement of copyright. Initially ISPs in Australia opposed the orders, arguing that to implement would be costly and difficult. An agreement was subsequently worked out whereby rights-holders would pay A$50 per domain that was to be blocked, with the blockage to take place within 15 days. ISPs were given flexibility as to how to apply the blockage and were able to do so with no technical difficulty. Since then the orders have become routine and the ISPs no longer even contest them.

The program has been demonstrated to be very effective as a deterrent to users accessing pirated content, but it is not infallible, given human and technical ingenuity. Last year further measures were introduced to make the orders even more effective. Because the operators of offshore pirate sites will resort to frequent name and domain changes, getting a separate court order for each clone domain can be time-consuming and undermines the effectiveness of the measure. The Copyright Amendment (Online Infringement) Bill of 2018 permitted the blocking of mirror and proxy sites without the need to return to court each time, and expanded the definition of an offending site from one whose “primary purpose” was to infringe to include sites whose “primary effect” was infringement, avoiding the dubious argument that a pirate website has a legitimate purpose while putting the blame on users of the service for accessing pirated material. As I wrote a couple of years ago, site blocking works well in Australia (and the UK) so why wouldn’t it have a similar positive effect in protecting rights-holders in Canada?

Let’s come back to the Canadian Federal Court decision and Teksavvy’s appeal. In addition to objecting to the court’s jurisdiction under the Copyright Act, Teksavvy has listed a series of other objections including the fact that the Telecommunications and Broadcasting regulator (CRTC) has jurisdiction under Section 36 of the Telecommunications Act, even though when a coalition of rights-holders known as FairPlay Canada petitioned the Commission to establish an administrative agency to review and recommend site blocking orders the CRTC declined and concluded that it had no jurisdiction over copyright infringements. Teksavvy also argues that Mr. Justice Gleeson erred by using a particular judicial precedent from British jurisprudence and finally that the order is inconsistent with the Canadian Charter of Rights and Freedoms, specifically with regard to freedom of expression. This last one is an interesting point because Section 2 (b) of the Charter that guarantees freedom of expression (which itself has some limits) does not guarantee access to information. One would think that limitation would be particularly relevant when it comes to accessing illegal content. But as I have said before in this blog, I am not a lawyer. This will keep the legal profession busy and at the end of the process, we will have greater clarity as to the legality of site blocking in Canada under current law. That’s as it should be.

Thus I found it strange that law professor Michael Geist attacked not only the Federal Court ruling but the fact that the court even heard the case, arguing that the decision was “deeply flawed from both a policy and legal perspective, substituting the views of one judge over Parliament’s judgment”. Now we know Prof. Geist has a thing about site blocking, having written numerous blogs attacking it from one perspective or another, ranging from arguing that (a) it is not needed because piracy is not that big a problem, to (b) it is not effective because a user determined to find pirated content can find a workaround, to (c) it is counter to net neutrality (the principle of non-discrimination regarding legal content on the internet), and so on. Apart from these arguments, all of which can be easily refuted, he has consistently opposed any attempt to find a way to implement site blocking. When the FairPlay coalition proposed the establishment of an arm’s length administrative agency to review site blocking proposals and submit recommendations to the CRTC to issue blocking orders, Geist attacked the process as being non-transparent. In one blog he claimed that the absence of a court order would put Canada at odds with just about everyone else. (Not true because about a third of countries that use site blocking do so through an administrative process).

Criticizing the FairPlay Canada proposal to the CRTC, Dr. Geist said;

“One of the most obvious problems – indeed one that is fatal – is the absence of court orders for website blocking. The attempt to avoid direct court involvement in blocking decisions means the proposal suffers from an absence of full due process, raising a myriad of legal concerns.”

That was then. Now he seems to be opposed to the court playing any role. “(I)t is obvious that site blocking raises so many issues that it requires a government policy decision, not a single judge making a myriad of policy calls”.

One hesitates to quote oneself but in this case I cannot resist. Back in April of 2018 I wrote a blog about the pending CRTC decision on the FairPlay Canada proposal, and Dr. Geist’s criticism of it for being an administrative rather than a legal process. I noted that if the FairPlay proposal eventually morphed into a court-sanctioned process, as he was insisting upon, I could already hear the clashing of gears as the back-pedalling began on the part of Geist and others opposed to any form of site blocking to protect Canada’s content industries. Instead of attacking the proposal on the basis that it would be conducted by an administrative body, new arguments would be invented. And this is exactly what is happening today.

Dr. Geist is now urging that “public interest and free speech groups” become engaged in the appeal and I am willing to wager a bottle of Newfoundland Screech that we will see Silicon Valley-funded groups like Open Media, and the Samuelson-Glushko Canadian Internet Policy & Public Interest Clinic (CIPPIC) at the University of Ottawa (founded by Geist in 2003) seek intervenor status. The latter does not hide its anti-copyright leanings, being named after major benefactors Prof. Pamela Samuelson and her husband Dr. Robert Glusko. Samuelson, a prominent law professor and Co-Director of the Berkeley Center for Technology and Law (Google is a funder) at the University of California and current Chair of the Board of Directors of the Silicon Valley advocacy group Electronic Frontier Foundation, is well known a proponent of weaker copyright laws.  (CIPPIC does not disclose its sponsors, saying only that it is funded by a variety of research grants and contracts).

While Teksavvy has challenged the Federal Court decision, and CIPPIC and others may seek intervenor status, other Canadian ISPs did not. As a result, Geist claims that Canada is “an outlier”. He criticizes Canadian ISPs for not opposing the order, claiming that in most countries legal cases involving site blocking are defended by the ISPs, and argues that the reason for not doing so in Canada is because the ISPs also have content businesses. These statements need to be challenged. First, there are a number of countries where ISPs have concluded that it is not in their interest to oppose site blocking orders, Australia being the best example of the change of heart that took place amongst the ISPs once the system became routinized. Second, while it is true that there are increasing numbers of ISPs in Canada and elsewhere with content businesses, major ISPs in Canada like Telus and Eastlink who do not own their own content businesses nonetheless decided that there was no good reason to oppose the order. Rather than being an outlier, with this decision Canada now moves toward the mainstream.

Where will it lead? Will site blocking in Canada through the courts be sustainable? Only time will tell. The issues will no doubt get a thorough hearing in the appeal process. If an administrative regime like the one proposed by FairPlay Canada is not achievable because of jurisdictional loopholes, then the courts are the logical place to turn to for relief.

Should the Federal Court’s decision be overturned, for the sake of the creative community in Canada, for the content businesses that develop and distribute Canadian and international content, and for the tens of thousands of people that work in the industry—as well, at the end of the day, for the benefit of the consumer— it will fall to Parliament to deal with the growing issue of offshore streaming piracy in Canada. That could take a very long time given Canada’s current minority government situation.

For now, the courts have the mandate and have shown that they are prepared to act. Let’s hope that their ability to do so is upheld.

© Hugh Stephens, 2019. All Rights Reserved.