Can Canadian Courts Issue Site-Blocking Orders? Prior to last Friday, it would have been unprecedented. With the Federal Court’s decision in Bell Media Inc v GoldTV Services (2019 FC 1432), that is no longer the case.
Although it is a single trial court decision, owners of Canadian copyrights and their lawyers now have an affirmative answer and even a test to apply to the issue.
The case relates to two websites, GoldTV.biz and GoldTV.ca, which offered an unauthorized subscription service allowing users to stream copyrighted content. The copyright owners and exclusive licensees (Rogers Media Inc., Groupe TVA Inc. and Bell Media Inc.) objected to this, alleging infringement.
Conspicuous by his, her, or their absence were John Doe 1 and John Doe 2, the respective operators of the sites. Despite the plaintiff’s diligent efforts, identifying these entities proved impossible, with the judges in earlier stages of the proceedings commenting that this was likely due to “obvious efforts to remain anonymous and avoid legal action by rights holders…”
Caught in between were the nation’s internet service providers (ISPs). Indeed, in the absence of the defendant and faced with ongoing infringement of their rights, the plaintiffs sought site-blocking orders against eleven major ISPs. Of these, four consented to the order and four took no position. Distributel and Cogeco sought to vary the language of the order, and only TekSavvy opposed the order on the merits.
TekSavvy argued that while the Federal Court might have “narrow” jurisdiction over the matter, it should decline to exercise it. The Canadian Radio-television and Telecommunications Commission (CRTC), they claimed, with its specialised expertise in broadcasting, was the appropriate forum for the complaint. The court responded that the case was properly characterized as a copyright matter, over which the CRTC had no jurisdiction. Furthermore, it ruled that its power to grant injunctive relief under section 34(1) of the Copyright Act was broad enough to include orders against innocent third parties.
With that, Justice Gleeson turned to the applicable test. Previously unknown in Canadian jurisprudence, website-blocking orders have some history in England and Wales. Noting that there is a statutory framework for such orders in that jurisdiction, but not in Canada, Justice Gleeson nonetheless determined that the decision of the Court of Appeal (England and Wales) in Cartier CA constituted appropriate guidance in the matter. “Proportionality” was the key word in that decision, with eight factors considered relevant to proportionality:
- Necessity – is the relief necessary to protect the plaintiff’s rights?
- Effectiveness – will the relief make infringing more difficult?
- Dissuasiveness – will the order dissuade non-users from using the service?
- Complexity and cost of implementing the relief
- Barriers to legitimate use or trade
- Fair balance of the rights of the parties, the third parties and the general public
- Substitution of another infringing website for the infringing website
- Safeguards against abuse
With that being said, he considered the necessity criterion, as well as the availability of alternative remedies in his irreparable harm analysis. The remaining criteria went to assessing the balance of interests.
On the basis of this approach, and the fact that the defendants had remained anonymous, he concluded that the infringement was indeed inflicting irreparable harm. On the balance, proportionality favored the plaintiffs. The evidence was mixed but sufficient on effectiveness and dissuasiveness. Arguments based on cost, substitution and safeguards were not enough to tilt the balance against the order. Of interest to those following the net neutrality debate, Teksavvy invoked the common carrier doctrine under the fairness criterion. However, Justice Gleeson was not convinced that the doctrine applied where it would require ISPs to facilitate unlawful conduct.
A site-blocking order was therefore granted. As of press time, the target websites were inaccessible.
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David McLauchlan is an associate within the Intellectual Property Practice Group. He works chiefly in the areas of health and life sciences. He advises clients on drafting and negotiating research agreements, as well as on issues related to regulatory responsibility, ethics and compliance.