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Canadian appeals court upholds the country’s first web-block
By Chris Cooke | Published on Thursday 27 May 2021
The Federal Court Of Appeal in Canada has ruled that the first anti-piracy web-block instigated in the country can stay in place, dismissing an appeal by internet service provider TekSavvy. The appeals court concluded that having net firms block websites on copyright grounds does not violate any Canadian laws covering copyright, free speech or net neutrality.
Web-blocking, of course, is where courts or government agencies issue orders that force internet service providers to block their customers from accessing websites that prolifically infringe other people’s copyrights. Such blockades aren’t yet available in every country but, where they are, they have become a preferred anti-piracy tactic of the music and movie industries.
Web-blocks weren’t available in Canada, and when various groups lobbied the country’s tel-co regulator – the CRTC – to set up a web-blocking agency in 2018, it ultimately decided it didn’t have the power to do so. However, in 2019 the Canadian Federal Court issued a web-blocking order against GoldTV, an unlicensed video service.
Whenever web-blocking is first proposed in a country there are usually plenty of opponents to the principle, especially among internet companies, which generally don’t like being forced to police the net. That said, those internet companies that are also cable TV companies – and who therefore have a vested interest in stopping movie piracy in particular – can be among the biggest supporters of the web-blocking approach.
That was the case in Canada, where some of the big cable companies were among those calling on the CRTC to instigate some web-blocks. When that didn’t work, it was also those companies that went to court to get a web-block injunction against GoldTV. But there are still some ISPs in Canada opposed to web-blocking, they mainly relying on the classic arguments against the anti-piracy tactic: ie that it’s open to abuse and doesn’t really work.
TekSavvy was one of those ISPs, and it appealed the Federal Court ruling in relation to GoldTV. Given that this was a test case setting a precedent regarding web-blocks in Canada, both the International Confederation Of Music Publishers and the International Federation Of The Phonographic Industry made submissions to the court supporting the original ruling. Meanwhile, the Canadian domain registry CIRA and the University Of Ottawa’s Internet Policy And Public Interest Clinic made submissions opposing web-blocking.
The cable companies that originally sought the web-block, and good old TekSavvy, all presented their respective arguments in the appeals court back in March. TekSavvy had various arguments as to why the lower court should not have issued the web-blocking injunction, including that such injunctions are not specifically mentioned in Canadian copyright law, that they violate laws to protect free speech and net neutrality, and that web-blocking – and the resulting work that ISPs must undertake to enforce any blockades – isn’t “just and equitable”.
However, the appeals court rejected all of those arguments yesterday. Judge George R Locke, with the agreement of his fellow appeal judges, wrote: “Having found no error in the judge’s conclusion that the Federal Court has the power to grant a site-blocking order, and having likewise found no error in his analysis of the applicable legal test, I conclude that this court should not interfere with the judge’s decision”.
The boss of the aforementioned CIRA was unsurprisingly critical of the ruling.
Byron Holland said in a statement: “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 tel-co 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”.
Although, Holland added, while this ruling arguably sets a precedent that web-blocking is now possible in Canada, he is hopeful that the ongoing debate among law-makers in the country regarding how best to regulate the internet could change things.
“The debate over what test should be applied before ISP-blocking can ever be appropriate is not over”, he went on. “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”.
