One of Canada’s leading internet advocates has submitted comments into the government’s consultation on the role of online intermediaries in combatting copyright infringement. In its submission, the Canadian Internet Registration Authority (CIRA) outlined a set of principles that would help policy-makers design a framework to ensure that internet service provider-level (ISP) website blocking would only be used as a measure of absolute last resort.
“Website blocking should never be used when more proportionate responses are available,” said Byron Holland, president and CEO of CIRA.
“While the courts have asserted their ability to issue blocking orders, the government’s consultation offers Canadians the opportunity to re-draw the boundaries around when—if ever—website blocking is acceptable. In our submission we outline a set of principles that we believe will help policy-makers ensure that website blocking only happens as a measure of last resort, and doesn’t violate net neutrality or harm the technical functioning of the global internet.
We thank the government for the opportunity to share our perspective, and we are on standby to assist them in their understanding going forward.”
CIRA’s comments come on the heels of a Federal Court of Appeal ruling to uphold Canada’s first-ever court-ordered website blocking framework. While the Court’s decision did not grant ISPs the power to block websites at will, it demonstrated the Court’s position that website blocking is not a remedy of last resort, where CIRA believes that it should be.
The government’s consultation offers all internet governance experts the opportunity to establish a new set of tests for when ISP-level blocking is acceptable.
Summary of CIRA’s Submission
ISP-level website blocking should only be used as a measure of last resort to combat online piracy, and only after a process of substantive and procedural due diligence has been pursued.
CIRA’s view is that there are intermediaries and control points closer to the alleged offender that can be engaged before resorting to website blocking.
CIRA submits the Internet & Jurisdiction Policy Network’s “content complaint referral path” as a roadmap for or how to ensure proper due diligence and proportionality in addressing copyright infringement.
Blocking should not be permitted until the rightsholder has tried and failed to secure redress from the website owner and efforts to have the hosting provider remove the content have failed.
Defaulting to website blocking violates net neutrality, impedes the technical functioning of the internet, and is not the most effective remedy for dealing with copyright infringement.
The Federal Court of Appeal ruled to uphold Canada’s first-ever website blocking framework in the case of TekSavvy Solutions v. Bell Media Inc. et al. In 2019, a lower court granted a request by three television distributors affiliated with major telcos to order internet service providers (ISPs) to block access to online streaming services doing business as “GoldTV,” including sites associated with GoldTV.ca.
In late March, the Federal Court of Appeal heard oral arguments in the case, including CIRA’s, and today affirmed the lower court’s decision.
In late July 2019, Bell Media Inc.; Groupe TVA, affiliated with Québecor and Videotron; and Rogers Media Inc. filed a lawsuit against IPTV provider GoldTV for alleged copyright infringement, and asking that ISPs be ordered to block it.
In November 2019, the Federal Court of Canada issued Canada’s first-ever site-blocking injunction that required certain ISPs in Canada to block identifiers related to GoldTV, including GoldTV.ca. The blocking injunction was issued under the Copyright Act, but engaged issues related to the Telecommunications Act.
In response, Chatham-based independent ISP TekSavvy Solutions appealed to the Federal Court of Appeal. CIRA requested, and was granted leave, to join as an intervener to assist with the court’s understanding of whether this mandated site-blocking, which is unprecedented in Canada, is proportionate and consistent with copyright and telecommunications law and international practices.
In August 2020, as ordered by the Court, CIRA submitted its argument jointly with the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic (CIPPIC). On March 25, 2021, CIRA appeared before the court.
The Canadian Internet Registration Authority (CIRA) was amongst the interveners who presented before the Federal Court of Appeal. CIRA’s submission on website blocking offered the court a unique perspective on whether court-ordered website blocking in Canada is proportionate and consistent with the principles of copyright and telecommunications law and international practices.