TekSavvy files appeal against site-blocking order

Internet service provider TekSavvy Solutions Inc. has appealed a Federal Court order requiring ISPs to block a pair of websites selling allegedly pirated content. In a Federal Court of Appeal filing on Monday, the ISP said that Federal Court judge Patrick Gleeson made an error in law when he ruled that Section 36 of the Telecommunications Act did not require ISPs like TekSavvy to first get approval from the CRTC before blocking sites. In a two-day hearing in September that preceded this month's decision, TekSavvy was the only ISP to push back against a request from a consortium of companies asking the courts for a precedent-setting site-blocking order, which would require them to block websites as ordered by the court. The appeal comes as some of the ISPs -- who had 15 days to abide by the court order -- have already blocked the allegedly infringing GoldTV sites from appearing. https://twitter.com/mgeist/status/1199065522815549447 The Federal Court’s decision to allow internet service providers (ISPs) to block websites associated with alleged infringing material puts the country on a slippery slope, according to a British expert. “Once you’ve got it in somewhere, it’s very easy to spread,” Jim Killock of the United Kingdom-based Open Rights Group (ORG) said of website blocking. “I think the main reason for that is just a technical one… You have the infrastructure, now it’s up to anyone and their dog to lobby for their favourite group of nasty things to be blocked. “Its very hard to say ‘well this harmful thing, that’s illegal, we should leave it alone.’ And this is the point on the slippery slope where we must stop,” Killock said in a phone interview. In the decision earlier this month, Gleeson wrote that he was not convinced by arguments from TekSavvy that the court should not exercise its jurisdiction on a subject that has been debated across parliamentary committees, CRTC proceedings, and legislative reviews. The deadline for TekSavvy to appeal the decision was Monday. Referring to those asking the court for a site-blocking order against GoldTV, Canadian Internet Policy and Public Interest Clinic director David Fewer was surprised that the court granted the motion because of the jurisdiction issue. “They’ve gone fishing in the Federal Court for a remedy that only parliament ought to be granting, and they caught a whopper,” he said in a phone interview. Fewer said that the decision opens the door for site-blocking motions in areas that extend into areas beyond copyright. “There’s nothing special about copyright that makes this remedy unique to copyright,” he said. “Think of all the different types of civil claims that are associated with content,” he said, adding that he thought site-blocking might now be sought in cases including trademark violation, hateful and harassing speech, and defamation. Site-blocking is “blocking the whole site; it’s not tailored to infringing content, and it’s getting non infringing content, and that’s really problematic,” he said, arguing that Canada could head toward a site-blocking landscape similar to that in the U.K. “In Britain, they are site-blocking happy. They block all sorts of stuff, and not just on copyright grounds,” Fewer said. University of Ottawa law professor Michael Geist wrote on his blog that the decision intervenes in a particularly fraught policy area. “Perhaps most troubling is that the judge has created a substantive new policy framework for site blocking,” Geist writes, “an issue that given the many complex policy issues (including copyright enforcement, freedom of expression, net neutrality, and telecom competition) is best left to Parliament.” Geist’s analysis further pointed to the court’s reliance on British jurisprudence in the Cartier site blocking case. ”To establish a Canadian site blocking system based on a different UK law calls into question the correctness of the decision,” he wrote. Killock said that those who have raised concerns about the spread of site-blocking are “absolutely right to be worried.” The ORG maintains a database of court ordered site blocking, as well as how many individual blocks are needed to abide by a given court order, as well as how many sites the group believes are being blocked in error. For example according to ORG registry, one particular court order, 1967 Ltd & Ors v British Sky Broadcasting Ltd & Ors, seeks to block 16 different torrent services for the accessing of pirated content. In fulfilling the blocking order, ISPs have blocked 113 different sites, 47 of which the ORG maintains are blocked in error. Killock said one of the central difficulties of the site blocking regime as it has developed in the U.K. is unblocking sites that were blocked in error. The blocked URLs are mostly dormant and unused domains, and “are not causing massive free expression issues,” Killock said, “but they are a nuisance, and they show that they’re not being maintained well. It’s a lot of effort to go to court and get parked domains unblocked. “The really important point, at this point, is to know that the UK system has been a mess, and if Canada’s going down that system, it needs to make sure it doesn’t repeat the same mistakes,” Killock said. “It needs to have things like error reporting and making sure that the people doing the blocks don’t just end up blocking hundreds of dead domains and so on.” Allen Mendelsohn, a McGill University law professor, said that the decision was surprising in that the notice-and-notice regime, which stipulates that ISPs must forward warning notices to subscribers who are allegedly infringing on copyright, was supposed to be the ultimate remedy for copyright violations in Canada. “Now we have the court deciding well, that’s not.” Another unintended consequence of site-blocking regimes is the rise in the use of virtual private networks, or VPNs, Killock said. “If your aim here is to clean up the internet for whatever reason, and then the effect is that people all start using circumvention tools,” he said, “then it’s not just your policy objective, it’s everybody else’s policy objective that ends up being screwed.” In 2018, a coalition of telecoms companies and content producers came together under the banner of Fair Play to ask the CRTC to create a site blocking regime, which the commission declined to do, saying it had no jurisdiction. In issuing the decision this month, the Federal Court judge cited the previous Supreme Court decision in Google Inc. v. Equustek Solutions Inc., in which the Supreme Court ruled that Google would have to de-list links in an intellectual property theft case. One of the lawyers acting in that case, Barry Sookman of McCarthy Tétrault, said he felt that the decision would not result in a new era of widespread site-blocking. “The court laid down criteria that it would apply before an order was granted. These types of proceedings are expensive and time consuming,” Sookman said, “so I don’t expect it will be like a bag of sweets, and people are going to be running into court getting these orders willy nilly.” He said that the remedy was only needed in cases like the GoldTV case, in which the telecom companies said they could not identify the operators of the site. “These are really needed where you have anonymous defendants, causing harm. You can’t find them, they won’t obey court orders,” Sookman said. “Will this lead to a vast expansion of this remedy? The answer is: probably not.” — With reporting by Michael Lee-Murphy at mleemurphy@thewirereport.ca and editing by Ahmad Hathout at ahathout@thewirereport.ca

TekSavvy files appeal against site-blocking order

News | November 25, 2019

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TekSavvy files appeal against site-blocking order

News | November 25, 2019

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