Distributel asks court for ability to challenge future site-blocking

In the event Federal Court allows a site-blocking application brought by three of the country’s largest broadcasters, Distributel Communications Ltd. wants to ensure internet service providers (ISPs) can challenge subsequent orders brought to their doorstep and be compensated for any legal action taken against them for complying. That’s according to a new draft order filed by the small telecom in Federal Court on Thursday, in which it seeks to amend the existing document brought by plaintiffs Rogers Communications Inc., BCE Inc., and Quebecor Inc.’s Groupe TVA earlier this month. A draft order is a pre-written document made by the parties stipulating terms for a direction that would be signed off by a judge after he makes a decision on the matter. It is not binding until signed. The plaintiffs and third party respondents, which includes Distributel -- one of few parties raising a dispute -- have hit an impasse on agreeable terms for an order since counsel to the telecom giants told a Federal Court judge last week that they would submit an amended draft order with third party consent on site-blocking terms to deal with alleged pirating by IPTV service provider GoldTV. The plaintiffs allege GoldTV is taking its signals without a license, bundling them in a massive library of content, and selling them for a discount to what would otherwise be charged for the sum of its parts. The Federal Court has already ordered the sites be taken down -- the site addresses result in error pages -- but the court now moves to arguments about whether an order on ISPs to block the sites should be granted to ensure the sites cannot resurface. If granted, it would be the first such order to allow ISPs to block websites, which critics have said would run counter to net neutrality principles and cause friction with Parliament as it reviews the telecommunication and broadcasting acts. The court case has already resurfaced discussion about an application -- brought by a coalition of companies called FairPlay Canada seeking to block websites engaged in piracy -- that had already been turned away by the CRTC but may yet reemerge when a government-appointed panel makes its recommendations in January on amendments to the aforementioned laws. TekSavvy Solutions Inc., an outspoken critic of site blocking, said last week at the hearing that a court order in favour of site blocking would cause friction with that government review. On September 11, the first day of the hearing, the court received the original draft order from the plaintiffs. The first part of it requires that the third party respondents respond to an order to “block or attempt to block access” to the specific websites within 15 days of the order. That wasn’t the contentious part for most parties. What was, though, was the part that included an ability on the part of the big ISPs to add to the order on “an ongoing basis by giving notice to the Third Party Respondents of any other domain, subdomain or IP address that has its sole or predominant purpose to enable or facilitate access to the Websites” and to remove them within 10 days of the notice, as outlined in the undisputed part one. Thursday’s submission by Distributel, represented by law firm Aird and Berlis, amends that part to recommend that -- if the plaintiffs identify an instance of a domain or IP address allowing access to GoldTV -- the moving parties file a proposed amended order highlighting the allegedly offending websites for possible blocking, but that the third party can “bring a motion to object” to the additional addresses by filing a motion within 10 days of the amended order. The original draft order does not include an explicit clause stipulating third party ISPs can challenge blocking of those additional sites. Counsel to the plaintiffs, Smart and Biggar, did not respond to questions about whether it agrees to allowing the respondents to challenge a blocking order. “If no Third Party Respondent brings a motion to object within business days,” the Distributel draft order says, “the Court may grant the Order without further proceedings.” The original draft order includes a stipulation that operators of affected sites and any ISP customers harmed by this order by inhibiting their ability to access or distribute non-infringing material can file a motion with the court to review the matter. The agreed-upon draft order was due to the court on Wednesday, but that deadline could not be met because the parties could not agree on the terms in time, according to a letter from Distributel’s counsel. The lawyers from Aird and Berlis said they had not received a revised draft order on the Monday after the hearing concluded last Thursday. In the law firm’s subsequent communications with the parties, “the Third Party Respondents made various substantive concessions in efforts to reach agreement,” leading to the new proposed draft filed in court Thursday. In its own submission to the court, Smart and Biggar said it could not agree to terms of a draft order suggested by Distributel on Monday morning, and that it included terms that did not align with the plaintiff’s position. After a call with the parties, on Tuesday the plaintiffs submitted their own revised draft, but claim that the respondents only shared their views on that draft at 4 p.m. on Wednesday, thus requiring more time to view. The plaintiffs anticipate they would be able to reach an agreement with “as many of the as possible” by end-of-day Friday. Distributel agreed to that extension of time and on Thursday, judge Patrick Gleeson granted it. The hearing last Thursday saw judge Gleeson disappointed that the plaintiffs didn’t work hard enough to come to a resolution on a blocking order that they wished upon the respondents. The newly proposed draft also includes a dispute on costs. Whereas the original draft order only allows “reasonable marginal costs” in favour of the respondents for complying with the blocking order and any error made by the plaintiffs on an order, the new draft includes a mechanism allowing the respondent to be compensated by the plaintiff in the event the former is served a legal action as a result of its compliance with the order generally, with no qualifications. “In the event the Plaintiffs fail to pay the invoice or serve and file the motion as prescribed,” the new draft says, the respondents “shall not be required to comply with the blocking terms of this Order.” The original and new drafts include the ability of the ISPs to suspend compliance with a block if it must “correct or investigate potential over-blocking” caused by the order. Bragg Communications Inc.’s Eastlink, Saskatchewan Telecommunications Holding Corp., Shaw Communications Inc., and Telus Corp. are among the third party respondents who have taken no position on the site-blocking motion. The rest of the respondent field includes Quebecor Inc.’s Videotron and Cogeco Inc. Cogeco declined to comment about whether they have reached an agreement on the draft order. Because the legal proceeding is ongoing, many of the lawyers could not comment on the matter. TekSavvy, which has until Monday to make further submissions, has already argued that the “draconian” site blocking mission would set a dangerous precedent, but judge Gleeson retorted by saying the site blocking would only impact GoldTV. Replies by the plaintiffs to any further submissions are due on September 25. — With reporting by Ahmad Hathout at ahathout@thewirereport.ca and editing by Anja Karadeglija at akarad@thewirereport.ca

Distributel asks court for ability to challenge future site-blocking

Broadcast | September 19, 2019

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Distributel asks court for ability to challenge future site-blocking

Broadcast | September 19, 2019

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