Federal Court of Appeal hears Internet Service Provider’s November 2019 blocking order
The Federal Court of Canada judge who ordered Internet Service Providers to block certain websites erred in finding the court has jurisdiction to issue such an order, say lawyers for ISP provider TekSavvy Solutions. It also violates freedom of expression as protected by the Canadian Charter of Rights and Freedoms.
“He saw a wrong and he wanted a remedy - unfortunately, the wrong has to be considered in the context of the legislative schemes,” Colin Baxter told a Federal Court of Canada appeal panel. TekSavvy wants the appeal court to revoke the blocking order granted to Bell, Rogers, Quebecor and other media companies.
“When faced with the novel remedy of unprecedented scope that the Federal Court has ordered, this Court of Appeal should refuse the plaintiffs’ invitation to upset the careful balance struck by Parliament in the two statutory regimes at issue here,” Colin Baxter told the panel of three judges," referring to laws under the Copyright Act and the Telecommunications Act.
Baxter commented on the first day of a two-day virtual hearing at the Federal Court of Appeal that began Wednesday.
The motions judge in November 2019 rejected TekSavvy’s argument that the Canadian Radio-television and Telecommunications Commission (CRTC), not the federal court, had the sole jurisdiction to issue or approve site-blocking orders.
The judge determined that the court could issue such orders, which did not need to be approved by the CRTC, particularly if the case was a copyright matter. The Copyright Act provides the court with the broad power to grant injunctive relief, including orders against innocent third parties.
However, during the appeal hearing, Baxter argued that a proper reading of the statutory scheme of the Copyright Act “tells you that this type of relief is not available.”
The original Federal Court of Canada order required 11 internet service providers, including TekSavvy, to block access to websites such as GoldTV, which were providing access to copyrighted content without permission.
Bell, Rogers and Quebecor’s Groupe TVA and others sought the order after two earlier injunctions orders proved ineffective against the anonymous site operators. The content remained available on the sites and broadcasters sought an alternative remedy to block access to the websites and internet services operated by the defendants through third-party ISPs.
These third parties included Eastlink, Cogeco, Rogers Communications, Shaw Communications, Videotron, Bell Canada and TekSavvy. Four of the major ISPs consented to the blocking order, while others took no position.
TekSavvy is the only ISP asking to have the order struck down, though intervenors such as the British Columbia Civil Liberties Association have also been approved.
The ISP provider argues the federal court erred in finding it has jurisdiction to issue such an order and in its interpretation and application of the test for a mandatory injunction. TekSavvy is also appealing because the site-blocking order violates freedom of expression, protected by the Canadian Charter of Rights and Freedoms.
TekSavvy VP of Regulatory and Carrier Affairs Andy Kaplan-Myrth, who is not participating in the hearings but is watching the virtual proceedings, says the broadcasters initially asked the CRTC for the ability to block websites. The regulator refused, saying this was a copyright issue and not a telecom issue. The companies also asked Parliament to do it as part of the copyright review a few years ago. Parliament considered the idea and rejected it “because, on balance, they found it would do more harm than good.”
Kaplan-Myrth also pointed out that many of the ISPs targeted by the blocking order are owned by the companies seeking the order. “Honestly, if they had stopped there, they would have gotten away with it, nobody would have opposed it,” he says.
“They would have gotten a site blocking order against themselves. Instead, they added smaller distributers, and TekSavvy, which is a bit larger but also a small competitor compared to the plaintiffs. We had to oppose it, as we just see this as being completely against what internet service providers should be doing.”
The Federal Court blocking order granted in November 2019 was for two years. As it stands, it will review the order towards the end of this year. ISPs, including TekSavvy, have a list of websites where blocking must apply. New sites are added, and others drop off when they are no longer active. None of the original sites are still on the list.
Kaplan-Myrth notes that there are alternative measures that the plaintiffs didn’t try, like stopping payments to these websites, rather than attacking free speech and neutrality.
ISPs aren’t supposed to interfere with the traffic flowing across their network unnecessarily under net neutrality, Kaplan-Myrth says. As well, copyright holders may seek to expand site blocking in other ways, which could ultimately stifle free expression and speech.
He adds that while downloading was the original problem, steaming is now the mechanism for delivering content illegally. “The crazy thing is that many of those using these services do not realize it is illegal because the way things are set up, it looks legitimate.
“The framework hasn’t really been designed to combat streaming, and blocking access to the Internet not only breaks the Internet, but it is also not very effective.
Marion Sandilands, also arguing on behalf of TekSavvy, told the panel that the motion judge decision was in error “in finding that this remedy is available at all, failing to consider Charter protected expression and in incorrectly applying” the injunction test.
“These errors all arise from one problem, an attempt to judicially craft a remedy that is not provided for in Canadian law,” she said. “This remedy ought not to be judicially created. Rather it is the purview of Parliament to provide this remedy by way of statute. Parliament can put into the statue the appropriate balance of the various interests at play, including freedom of expression and public interest.”
The British Columbia Civil Liberties Association (BCCLA) filed submissions arguing that site-blocking orders should only be issued when the harm of not blocking the site outweighs the harm of blocking it. If the Court does issue site-blocking orders, courts should minimize the infringement of Canadians’ Charter rights by making the order as narrow as possible.
Megan Tweedie, Senior Counsel at the BCCLA says this is critical given that the rules the Court uses to block copyright infringement could be used in other situations.
“We felt that the Federal Court decision really didn't give due consideration to the implications of the application on freedom of expression,” she says. “It's the first time in Canadian law that a court has ordered a third-party internet service provider to block its own customers access to third-party websites. And we say that that is a very big deal with far reaching impacts.”
The ability of artists, journalists, politicians, and scientists to express themselves freely online are at stake, the BCCLA says. If the court is going to permit site-blocking orders, “then it must also provide strict limits on their usage.”