TekSavvy Appeals Canada’s First Site-Blocking Order

TekSavvy Appeals Canada’s First Site-Blocking Order

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Bell Media Inc. et al v Goldtv.biz et al. (2019 FC 1432)

On November 26, 2019, TekSavvy filed an appeal against a recent Federal Court order requiring that 11 of Canada’s largest internet service providers (“ISPs”) block an unauthorized IPTV service known as “GoldTV”. Bell Media Inc. Group TVA Inc. (“Bell”) and Rogers Media Inc. (“Rogers”) first filed a claim against the owners of GoldTV.biz and GoldTV.ca on July 17, 2019. [5] Unable to locate the owners of the subscription service, Bell and Rogers instead convinced the Federal Court of Canada (“the Court”) to grant a site-blocking order. The order requires ISPs, including TekSavvy, to block domains used by GoldTV. Such an order has never before been granted in Canada.

Background

GoldTV is an IPTV subscription service, which essentially replicates the cable experience, providing live TV to households over the internet. But all of the content is stolen from legitimate broadcasters such as Bell and Rogers. Since IPTV businesses are operated online and often from foreign jurisdictions, it is nearly impossible for copyright owners to seek legal recourse against the offenders. The owner(s) of GoldTV remain unknown and are referred to in court documents as “John Doe 1” and “John Doe 2”.

For this reason, Bell, Rogers, CBC and other broadcasters formed a lobbying group known as FairPlay Canada (“FairPlay”). FairPlay advocated for the creation of a legal mechanism that could force ISPs to block copyright infringers.

Black IPTV box with the GOLD TV logo in yellow

A Gold TV service box advertised for sale by a website operated from Brampton, Ontario.

The Court’s Jurisdiction

Writing for the Court, Justice Patrick Gleeson first asked whether or not the Court has the jurisdiction to impose a site-blocking order. [21] Citing the Federal Courts Act and Google Inc. v Equustek Solutions Inc., 2017 SCC 34, Gleeson determined that the court has unlimited powers to issue equitable remedies, including remedies against a non-party such as an ISP. [22-26]

TekSavvy, the only ISP to oppose the motion, argued that the Court should nonetheless decline to assert its jurisdiction. [27] Issuing a site-blocking order, TekSavvy contended, would essentially overrule the wishes of Parliament, who chose not to include a site-blocking provision when reforming the Copyright Act in 2012. [28] Gleeson disagreed, finding that the reform process did “not equate to Parliament prohibiting this Court from exercising its equitable jurisdiction to issue a site-blocking order.” [29]

TekSavvy also argued that a site-blocking order falls under the purview of the Canadian Radio-Television and Telecommunications Commission (“CRTC”) and is therefore not in the Federal Court’s jurisdiction. [31] Gleeson was unpersuaded, citing a request that FairPlay made to the CRTC in 2018. At that time, the CRTC concluded it did not have the jurisdiction to issue site-blocking orders. [34]

Test for Interlocutory Orders

Gleeson next asked if the facts in this case warrant a court order. A court can only issue an interlocutory injunction if: [43]

  1.  There is a serious issue to be tried;
  2.  Irreparable harm will result if the injunction is not granted; and
  3.  The balance of convenience favours the plaintiff.

The most contentious issue was the third question: would an injunction unfairly inconvenience Canada’s ISPs? Following a UK site-blocking case, Gleeson considered eight factors: necessity, effectiveness, dissuasiveness, complexity and cost, barriers to legitimate use or trade, fairness, substitution, and safeguards. [52]

TekSavvy protested that implementing a site-blocking system could cost hundred of thousands of dollars. [85] Furthermore, site-blocking systems can easily be circumvented in a variety of ways such as a virtual private network or “VPN”. [20] More importantly, TekSavvy argued “that site-blocking is an extreme measure that risks inadvertently stifling free expression by blocking legitimate content.” Therefore, the harm caused by such an order outweighs any harm caused to Bell and Rogers. [69] Instead of a site-blocking order, TekSavvy suggested that Bell and Rogers pursue alternative solutions such as an order blocking customer payments to GoldTV. [64]

The court acknowledged TekSavvy’s concerns but ultimately ruled against the ISP. Although site-blocking cannot eliminate the use of GoldTV, it will effectively reduce infringing activities. [75] Furthermore, the order will not cause undue burden to TekSavvy or the other ISPs. [88] As to the concerns about free expression, the court order will only be used to block sites whose “sole or predominant purpose” is copyright infringement. [93] On these grounds, Justice Gleeson granted the injunction.

Commentary

In its appeal, TekSavvy claims that Gleeson erred in finding that the Copyright Act permits site-blocking orders and that the court order violates Canadians’ rights to freedom of expression. Site-blocking orders have been granted by courts in the United Kingdom, Australia, and France, but this is the first of its kind in Canada. Many consumer-advocacy groups and legal experts oppose the order because it threatens net neutrality—the concept that ISPs should allow access to all content, without barriers. Michael Geist, a law professor at the University of Ottawa, called the decision “deeply flawed.” In his blog, Geist writes that “site blocking will rarely be justifiable” because Charter rights must be prioritized over the economic interests of copyright owners.

For more information about site-blocking orders or to obtain IP 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 does not constitute legal or other professional advice of any kind.

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