Access Denied: Federal Court of Appeal Affirms Use of Site-Blocking Orders

Access Denied: Federal Court of Appeal Affirms Use of Site-Blocking Orders

Photograph of a remote control for a smart tv pictured in front of a television screen displaying a streaming service.

Teksavvy Solutions Inc. v. Bell Media Inc., 2021 FCA 100

On May 26, 2021 the Federal Court of Appeal (“FCA”) affirmed an order issued by the Federal Court (“FC”) requiring several third-party Internet Service Providers (“ISPs”) to block access to the pirated television streaming service GoldTV.

This decision confirms that the FC has jurisdiction to make site-blocking orders requiring third-party ISPs to limit access to sites that provide copyright-infringing content.

Background

GoldTV is an unauthorized Internet Protocol Television (“IPTV”) subscription service that provides access to television programming content over the Internet. These types of services pirate content from legitimate broadcasters while evading legal consequences, as the businesses are operated online and typically from foreign jurisdictions. The two individuals doing business as goldtv.biz and goldtv.ca are unknown and are referred to in court documents as “John Doe 1” and “John Doe 2”.

As previously reported, in July 2019 Canadian broadcast companies Bell Media Inc. (“Bell”), Groupe TVA Inc. (“Groupe”) and Rogers Media Inc. (Rogers) filed an action with the FC against the anonymous operators of GoldTV for copyright infringement. They obtained two interim injunctions restraining the individuals from continuing to stream the copyrighted content, to which the individuals neither complied nor responded to.

Consequently, Bell, Groupe and Rogers further sought a site-blocking order requiring several Canadian ISPs to block their customers’ access to the GoldTV websites. All but one of the ISPs named contested the order. In opposition, Teksavvy Solutions Inc. (“Teksavvy”) raised concerns about jurisdiction and argued that this kind of order was not an appropriate exercise of the FC’s powers. The FC dismissed the concerns and the site-blocking order was granted for a two-year period.

Though this is an unprecedented order in Canada, it is not the first time Canadian courts have imposed orders onto third parties that were not involved in any underlying lawsuit or guilty of any wrongdoing. In Google Inc. v. Equustek Solutions Inc., the Supreme Court of Canada (“SCC”) upheld a worldwide interlocutory injunction against Google the search engine, a third-party. The SCC found that injunctive relief can be ordered against non-parties when they are so involved in the wrongful acts of others that they facilitate the harm. A more detailed report on the decision can be read here.

Analysis

Teksavvy appealed to the FCA on several grounds. First, that the FC does not have jurisdiction to grant site-blocking orders, but rather, it is the Canadian Radio-television and Telecommunications Commission (“CRTC”) that has exclusive jurisdiction over this type of remedy. Second, that the order raises freedom of expression concerns under section 2(b) of the Canadian Charter of Rights and Freedoms (“Charter”). Third, that the order was not just and equitable in the circumstances and therefore does not satisfy the three-part test for mandatory interlocutory injunctions.

The Federal Court’s Power to Grant a Site-Blocking Order

With reference to sections 4 and 44 of the Federal Courts Act, the FCA confirmed that the FC is indeed conferred the statutory power to issue site-blocking orders [19]. The FCA further reasoned that section 34 of the Copyright Act even contemplates an injunction as an available remedy to address copyright infringement [30].

Though section 36 of the Telecommunications Act prohibits ISPs from “controlling or influencing” the content they put out without approval from the CRTC, the FCA reasoned that site-blocking orders are not equivalent to controlling content. Rather, these orders are meant to control the ISPs. As such, provisions of the CRTC do not operate to displace the FC’s equitable powers of injunction [36].

Freedom of Expression

With respect to Charter concerns, the FCA refused to categorize the activities of the ISPs, i.e., providing customers with access to certain websites, as expressive activity. The FCA reasoned that ISPs are carriers subject to net neutrality and therefore, though their subscribers may have an expressive interest in the content they access, the ISPs themselves do not [50]. Even so, the FCA found that it was unnecessary to engage in a Charter analysis as these concerns could be dealt with in the balance of convenience analysis considered in part-three of the test for injunctions [53].

Whether the Order is Just and Equitable

When granting site-blocking orders, the same test applicable to mandatory interlocutory injunctions is applied – the three-part test set out in RJR-MacDonald Inc. v. Canada (Attorney General). The court can only issue such an order if:

  1. There is a strong prima facie case;
  2. Irreparable harm will result if the injunction is not granted; and
  3. The balance of convenience is in favour of granting the injunction.

In applying the test, the FCA upheld the motion judge’s findings that the three parts of the test were satisfied. In particular, the FCA disagreed with arguments put forward by Teksavvy that the balance of convenience weighed against granting the order [81]. In addition, the FCA found that the motion judge was justified in relying on factors from decisions out of the United Kingdom on site-blocking orders, as they are unprecedented in Canada [77].

Ultimately, the FCA concluded that from the evidence and arguments available, the motion judge’s analysis did not disclose any palpable and overriding error. As such, the appeal was dismissed.

Commentary

This decision concludes years of effort by Bell, Rogers, and other major broadcasters to obtain site-blocking orders against ISPs. Inaction from the CRTC and Parliament ultimately led the respondents to seek a court order in the GoldTV case. However, the federal government is currently exploring amendments to the Copyright Act that would “clarify or strengthen” online enforcement tools, including site-blocking orders.

Pending appeal to the SCC, this decision brings Canada in line with several other countries that have allowed the use of site-blocking orders to combat intellectual property infringement. It represents a further tool available to copyright owners to enforce their rights against services that enable infringing content to circulate online.

For more information on obtaining copyright protection for your assets, please contact a professional at PCK Intellectual Property.


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The contents of this article are provided for general information purposes only and do not constitute legal or other professional advice of any kind.

Photograph of a remote control for a smart tv pictured in front of a television screen displaying a streaming service.