Site-blocking for “Online Harms” is Coming to Canada: Similar Measures to fight Copyright Infringement Should Follow

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Heritage Minister Steven Guilbeault is steaming full speed ahead with his strategy to get his arms around large internet platforms that deliver, or facilitate the delivery of, content to Canadians. The strategy has three prongs; (a) bringing digital streaming content providers under the oversight of Canada’s broadcast regulator, the CRTC, (b) requiring major social media platforms and search engines to compensate Canadian news providers when their news content appears on those platforms (similar to what has happened recently in Australia) and (c) establishing a regime to regulate “online harms” disseminated on social media. This regime will hold social media companies responsible for illegal content on their platforms if not removed expeditiously as soon as they become aware of it, and will require Canadian ISPs to block offshore websites and streaming services that disseminate illegal content to Canadians over the internet. These online harms proposals respond to public demands to deal with illegal online content related to sexual exploitation of children, hate speech and other harms, but similar principles could be applied to another form of online illegality that also harms the public, copyright infringement by offshore pirate sites.

No legislation has yet been introduced to implement blocking of sites disseminating harmful content although there have been plenty of signals that it is coming soon. It is reported that it will cover five categories of illegal content; hate speech, promotion of terrorism, child pornography, content that incites violence, and revenge porn (sharing of non-consensual images). A regulator will be established to assess and enforce compliance with the new regulations. Enforcement will possibly be done through a court order that, in the case of websites located offshore beyond the reach of Canadian law, would require Canadian ISPs to block content falling into the prohibited categories. Predictably there has been an outcry from the “usual suspects”, civil liberties groups, and “internet freedom” advocates who will argue that “net neutrality” requires that ISPs treat all content on the internet equally. (But net neutrality covers only lawful content.)  

There are concerns, some no doubt legitimate, that the new regulator could over-block in isolated instances, but it is expected there will be a transparent mechanism for appeal. This is essential as some online harms are easier to identify than others. No one is going to stand up and argue that child pornography should be available on the internet, but opponents of site blocking will argue that advocates for restrictions are using the fight against child sexual exploitation to open the door to broader “government censorship”. Questions will be raised about how to define terrorism, hate speech and inciting violence, but according to one legal website, “The new legislation is not set to expand on what is illegal, but is designed to address what is already illegal”. In other works, what is already illegal offline should be illegal online. The logic is irrefutable. That said, a more precise definition of “hate speech” may be required. When it comes to issues like hate speech, incitement to violence and even terrorism, there are potential grey areas, as the (in)famous adage that “one man’s terrorist is another man’s freedom fighter” so aptly illustrates. There is little doubt there will be some controversy and debate as all this gets sorted out. However, the main objective of getting racist, hateful, violence inciting, dangerous and otherwise illegal content taken down quickly or disabled is hard to argue with.

Quite apart from targeting offshore websites squatting in cyberspace beyond the reach of the Canadian courts, the legislation will ensure that social media platforms take greater responsibility for the content they disseminate. The “free pass” that major internet platforms have enjoyed to date (in the US through Section 230 of the Communications Decency Act of 1996) is coming to an end. Greater accountability is being propelled by the misuse of the platforms by some users combined with an unwillingness of the platforms to exercise control. With respect to offshore websites, blocking them at the (electronic) border is just about the only practical way to regulate what they disseminate.

These measures are all about illegal content and the application of existing criminal law in the online space.  They do not deal with copyright infringing content, but the same principles apply to impeding distribution of pirated content as they do for online harms.  The likely establishment of a new regulatory agency to implement offshore site blocking to restrict certain types of harmful content offers an interesting parallel for copyright holders. Canadian content stakeholders have already tried once, unsuccessfully, to initiate a regime for blocking offshore websites offering pirated content. They may be more successful this time.

That earlier effort, launched in early 2018, was called the FairPlay Canada coalition. It brought together  several major unions, the public broadcaster (CBC), five of the six largest national telecommunications providers, specialized TV providers, a major sports entertainment company, the country’s largest film festival, several major cinema exhibition chains, independent cinema operators, independent film producers and a combination of English-language, French-language and ethnic media, all with the goal of petitioning the CRTC to allow the establishment of an Independent Piracy Review Agency to adjudicate complaints of unauthorized distribution by offshore websites of content owned or licensed by Canadian rights-holders. If a complaint was authenticated by this administrative body (which contained a built-in appeal process), it would recommend the issuance of a site blocking order to the CRTC. Since the CRTC regulates the telecommunications sector (as well as broadcasting), FairPlay Canada argued that the Commission had authority to issue blocking orders to Canadian ISPs. The CRTC, after a series of public hearings and an internal review, disagreed. It claimed it did not have jurisdiction and referred the issue to Parliament.

Despite testimony in 2019 before  the Parliamentary committees reviewing the Copyright Act that site blocking would be an effective remedy against offshore piracy, the committees did not recommend it. The Industry and Technology (INDU) Committee, one of two committees reviewing the Act, came out with a wishy-washy, non-substantive recommendation (while raising the canard of net neutrality);

Following the review of the Telecommunications Act, that the Government of Canada consider evaluating tools to provide injunctive relief in a court of law for deliberate online copyright infringement and that paramount importance be given to net neutrality in dealing with impacts on the form and function of Internet in the application of copyright law.”

“Consider evaluating…” is not exactly a strong recommendation for action.

The Heritage Committee’s recommendation was even less helpful and less specific. The only tangential reference to site blocking that this committee listed in its recommendations was that the Government of Canada “increase its efforts to combat piracy and enforce copyright.”

As a result, to date no legislative action has been taken, although there are recent signs this may be changing.

With content owners and rights-holders not getting much joy from Parliament, action turned to the Courts. Somewhat surprisingly, since it was the first time it had done so, the Federal Court issued a site blocking order in November 2019 in the case of GoldTV, an egregious offshore piracy operator that had ignored previous court injunctions. The order was not opposed by any of Canada’s major ISPs but an appeal was filed by a small MVNO (mobile virtual network operator), ISP access reseller Teksavvy. The appeal was subsequently joined by a couple of “internet freedom” groups. It is hard to discern Teksavvy’s interest in appealing except that as a small reseller trying to carve out a customer base from the major ISPs, to be able to portray itself as a champion for unrestricted use of the internet (even to access illegal or infringing content) might be seen to give it some market advantage. (“Consumers of pirated content, you are welcome here”).  It is a specious way to run a business, but if the online harms legislation goes through, Teksavvy will have to comply with it like everyone else. The GoldTV case is ongoing, with the most recent court hearings being held in March of this year.

Meanwhile it looks as if the Trudeau government is finally getting serious about holding internet intermediaries to greater account when it comes to facilitating copyright infringement.  A discussion paper for public consultation proposing a host of possible actions to hold intermediaries–defined as including ISPs, cloud and web hosting services, search engines, web-based messaging and social media–to account, was released by the Industry Department (now known as Innovation, Science and Economic Development Canada) in mid-April. A number of ideas are floated in the paper, from tightening eligibility for safe harbour immunity (for example, by adjusting the knowledge standard related to infringing activity), to compulsory remuneration through collective licensing for use by intermediaries of copyrighted content, to establishing a statutory basis and procedures for injunctions against intermediaries, including site-blocking, de-indexing and takedown orders. The focus is on commercial-scale infringement, rather than individual actions. The comment period closes at the end of May.

This copyright-focussed consultation should be seen in the context of the ongoing discussion about regulating online harms. Driven by public dismay at the impunity with which internet platforms are used to spread dangerous, illegal and harmful content (Montreal-based Pornhub became the poster-child for irresponsible behaviour), the Government of Canada–with Heritage Minister Guilbeault as point man–is responding by proposing injunctions and site blocking for dissemination of illegal content on the internet, whether by domestic or foreign players.

Assuming an online harms regime is introduced, including establishment of a regulator to assess and act on illegal content through a transparent process, the public will gain confidence that the internet can be regulated appropriately in much the same way as offline content is regulated. If a process can be put into place to deal with online harms, one form of illegal behaviour on the internet, it can equally be applied to other forms of illegal conduct, such as copyright infringement. In fact, in some ways it is easier to determine copyright infringement than it is in the case of some online harms such as hate speech, terrorism and incitement to violence, which arguably have grey areas. Despite legal definitions, there will always be a degree of judgment required. In the case of copyright infringement, in the vast majority of cases the rights-holder is not in dispute. Most infringers will likely not even appear before a court or administrative tribunal to dispute the case.

Quite apart from the current GoldTV court case, it appears that the Trudeau government is finally prepared to move on site-blocking, amongst a suite of other measures to hold internet platforms more accountable. This includes requiring platforms to takedown harmful content expeditiously (no more immunity from liability if platforms fail to act or turn a deliberate blind eye to illegal content posted on their sites), along with blocking or disabling access to offshore websites disseminating similar illegal content. While not directly related, this should help lay the groundwork for the introduction of injunctions and site blocking measures to deal with illegal behaviour in the area of copyright infringement.

Although copyright enforcement is separate from the issue of online harms affecting internet users, there are nonetheless some similarities given that unrestrained copyright infringement also damages the public interest. Leaving aside the harm piracy inflicts on the economy and creative industries, widespread access by users to offshore pirate sites has other downsides, including exposing users to malware leading to extortion and worse, along with promotion of dodgy products and specious services. When it comes to the web, pirate sites operate on the periphery, outside normally acceptable business practices, and constitute yet another form of online harm.

Canada’s determination to address online harms through legislation will set a useful precedent that rights-holders can build on to develop similar measures to combat online piracy. The first hint of what may constitute a “Modern Copyright Framework for Online Intermediaries” is also now out for public consultation. At the end of the day, enacting reasonable controls over the practices of internet intermediaries and platforms is essential from a variety of perspectives, whether it is protecting children, combatting hate and racism and, yes, fighting piracy on behalf of creators and rights-holders.

© Hugh Stephens, 2021. All Rights Reserved.

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