Site-blocking is domain of CRTC, TekSavvy tells court

Even if the large telecoms satisfy the court’s threshold to move forward with forcing internet service providers (ISPs) to block a website involved in alleged copyright infringing activity, it should not grant the application because it would usurp the authority of the CRTC, TekSavvy Solutions Inc. is arguing in fresh documents filed in Federal Court on Monday. “To avoid frustrating the purposes of 36 and 7 of the Telecommunications Act, this Court ought to decline the exercise of its discretion on this motion, even if it is of the view that all of the criteria for injunctive relief, including the balance of convenience analysis, are otherwise met,” the submission reads. The argument is yet another mounted by the smaller ISP that has been the most outspoken critic of the move that could see the first real instance of a judicial body ordering telecoms to block subscriber access to a website. That’s an order whose jurisdiction should be held with the CRTC under the Telecommunications Act, TekSavvy argued in the submission to the Federal Court on Monday. It’s part of a case that involves an "IPTV" service called GoldTV, which was ordered by the court last month to shut its site down. Now, the case moves to whether the ISPs can be ordered to block the website from ever resurfacing. BCE Inc., Rogers Communications Inc., and Quebecor Inc.'s TVA Sports are asking the court to issue an order mandating several ISPs block the site, which operates under two separate domain names. “The Court should decline to exercise its jurisdiction to grant the new relief sought,” TekSavvy said in the submission, “even if some of the relief sought by the plaintiffs (viz a ruling on copyright infringement) in this action is not available from the CRTC.” And even if it decides to move forward, that order would have to be enforced by the CRTC under section 36, which requires the regulator’s consent before a telecom can influence what subscribers can or can’t see on its network, it said. The company said that previous courts have deferred to the CRTC on certain matters it found to be within its domain, “even where there are no pre-existing CRTC proceedings on the questions raised or where no CRTC decision has been made on the issue.” The Supreme Court of Canada is currently examining the concept known as the standard of review, which determines the amount of deference one court or tribunal should have on some issues. The company said if the court rules on site-blocking, it would rob the regulator of determining the “exceptional circumstances” involved to merit site blocking. An application -- put forward by an organization called FairPlay Canada -- to set-up a body to administer a site-blocking regime was turned away by the CRTC last year because it said that was the domain of the federal government. “Should court-ordered site-blocking become routine, this would erode the CRTC’s statutory ability to rule on site-blocking requests at first instance, with the benefit of public participation and with due consideration of the legislated telecommunications policy objectives,” TekSavvy said. The arguments come on the heels of a similar one made by the Chatham, Ontario-based company in court earlier this month that suggested such a “draconian” order to block websites would effectively trample on the authority delegated to a government-appointed panel that is looking at the issue. That panel, which is reviewing the country’s communications laws, will release its recommendations in January 2020. — With reporting by Ahmad Hathout at ahathout@thewirereport.ca and editing by Michael Lee-Murphy at mleemurphy@thewirereport.ca

Site-blocking is domain of CRTC, TekSavvy tells court

News | September 24, 2019

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Site-blocking is domain of CRTC, TekSavvy tells court

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