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Federal Court of Appeal upholds Canada’s first-ever website blocking framework

The Federal Court of Appeal has 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.

“Many Canadians will be disappointed by today’s ruling,” said CIRA president and CEO, Byron Holland.

“While it is important to underline that the court did not open the door for ISPs to block of their own volition, we believe fundamentally that there are more proportionate responses to copyright infringement than the GoldTV precedent prescribes.

Instead of ordering site-blocking at the telco level, with all of the risk that could carry for net neutrality, there are control points closer and more relevant to the act of infringement that should first be looked to.

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.

Holland said:

“However, the debate over what test should be applied before ISP-blocking can ever be appropriate is not over. The government is consulting widely on the future of the internet in Canada, with more legislation expected soon.

These court decisions have changed the status quo: now, it is a question of whether Canadians are satisfied with where the courts have reset it, or whether to legislate in favour of stronger protections for net neutrality that make ISP-blocking only available as a true last resort.

“All participants in internet governance – Parliament, administrative agencies, and courts — need to tread lightly when it comes to telecom-level blocking. There is a real risk of impeding the rights of Canadians, and even trampling on what has made the internet such a transformational force for good in our society.”

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.

It is uncertain at this time whether appellants TekSavvy Solutions will appeal this case to the Supreme Court of Canada. In parallel, the government of Canada recently launched a new consultation on whether website blocking should be used to curb piracy online.

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