CIPPIC, CIRA to challenge court authority in site-blocking case

Both the Canadian Internet Registration Authority (CIRA) and the Canadian Internet Policy and Public Interest Clinic (CIPPIC) at the University of Ottawa are set to argue that the only the CRTC, and not Federal Court, is authorized to direct third-party internet service providers to block websites. The argument would challenge the precedent set by the Federal Court in issuing Canada’s first-ever site blocking order. That order, which was issued (and expanded) in December, forces third-party ISPs to block websites that BCE Inc. and Rogers Communications Inc. and Quebecor Inc. say are violating their copyright. TekSavvy appealed the order in late November. Both CIRA and CIPPIC, in motions requesting the right to intervene in the appeal filed with the Federal Court of Appeal on Feb. 4, argue that the order violated Section 36 of the Telecommunications Act, which they say asserts that only the CRTC has the right to authorize site-blocking. In ordering the third-party ISPs TekSavvy, Distributel Communications Ltd., and Cogeco Inc. to block pirate IPTV service GoldTV, both CIRA and CIPPIC say that the court overstepped its authority. In its request for permission to intervene, CIRA says that the site-blocking order “could conflict with CIRA’s longstanding commitment to maintain an open and effective internet architecture that results from the coordination of the many participants to take responsibility for operating different technical aspects of the Canadian internet.” The organization, which manages and maintains .CA domains, says that if it is given permission to intervene it will argue that “there are more effective and appropriate control points relating to the internet to address allegations of copyright infringement.” CIRA also says it will not weigh in on TekSavvy’s other arguments: that site-blocking is not an available remedy under the Copyright Act, and that site blocking violates the Constitution Act. CIPPIC, for its part, will argue that site-blocking is not available under the Copyright Act. “Website blocking is an intrusive remedy, incompatible with the right to free expression, the legislative balance between copyright holders’ and users’ rights that sits at the heart of the Copyright Act, and principles of common carriage found in the common law and encoded into the Copyright Act and the Telecommunications Act,” it said. A site-block order, CIPPIC argues, “should remain extraordinary in nature, and factors justifying its issuance in particular instances must be strictly applied. In light of the intrusiveness of such remedies, they must only issue as a last resort, where less intrusive and more effective remedies have been shown to fail.” In December, lawyers representing Bell, Quebecor, and Rogers also sent a letter privately asking the third party ISPs to keep quiet about a requested expansion of the order until it was approved by the court, a request which drew raised eyebrows from some legal observers. “There is something extraordinary about the request,” University of Toronto law professor Ariel Katz said at the time. According to Katz, the fact of the letter demonstrates that there is not an adequately adversarial process with regards to site-blocking, with no representation for the public interest. — With reporting by Michael Lee-Murphy at mleemurphy@thewirereport.ca and editing by Anja Karadeglija at akarad@thewirereport.ca

CIPPIC, CIRA to challenge court authority in site-blocking case

News | February 7, 2020

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CIPPIC, CIRA to challenge court authority in site-blocking case

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