GoldTV site-blocking order runs “roughshod” over parliament’s authority: TekSavvy

Is a Nov. 2019 court order mandating a number of internet service providers to block a "pirate IPTV" service a draconian imposition of an authority best reserved to parliament, given that it serves to curtail freedom of expression and steps on the toes of the CRTC? Or is the court order simply a logical outgrowth of the need to adapt enforcement mechanisms to the changing nature of online piracy? These are the questions that now sit before a three-judge Federal Court of Appeal panel after the conclusion of a two-day hearing in a TekSavvy Solutions Inc. appeal against Canada's first ever site-blocking order. The order, which compels TekSavvy and a number of other internet service providers (ISPs) to block an IPTV service known as GoldTV that sold pirated content from BCE Inc. and Rogers Communications Inc. among others, was granted in November 2019. "This case is an important battle in long game that is being played, and has been playing out for the last two decades between the telecom and cable companies, the content owners, regulators, consumer advocacy groups," Colin Baxter, a lawyer representing TekSavvy, told the court on Wednesday. "The site blocking order at issue here, is by very nature a blunt instrument. It runs roughshod over the careful balance that parliament has crafted between copyright owners and copyright users," he said. "It bypasses straight by parliament's unequivocal guidance in the Telecom Act that the CRTC is to be the keeper and guardian of the common carrier principle that governs telecom providers." The issue of site-blocking has previously been considered before the House of Commons Industry committee, and the CRTC (which rejected the idea of setting up a blocking regime). Baxter's argument Wednesday hinged on his assertion that the site-blocking falls outside the remedies for combating piracy ascribed under the Copyright Act, and also intrudes on the CRTC's jurisdiction under Section 36 of the Telecommunications Act, which he asserted leaves the authority for site blocking up to the CRTC. Also arguing on behalf of TekSavvy, Marion Sandilands argued that the nature of the blocking order merits a consideration of how the order might restrict freedom of expression. The order, she told the court, blocks the entirety of content offered by GoldTV, not just the copyrighted content targeted by Bell, Rogers, and others. In evidence submitted by Bell in the original proceeding, the company identified some 213 programs and 36 channels that the telecom companies said was pirated content. GoldTV instead, Sandilands told the court, also offered many channels not subject to a copyright claim by the companies that sought the blocking order. GoldTV, she said, offers "hundreds and thousands of channels that we have not heard of, in languages we do not speak." "How do we know if they are subject to copyright? Plainly, nobody has checked," she said. "If we're going back to the original argument from the respondents, which is that copyrighted content is excluded from , well I'm afraid that cannot stand on the facts of this case," Sandilands said. "There's certainly, uncontroversially, far more content on the site than is claimed by the respondents under their copyright claim, and there may be content that isn't subject to any copyright." In an interview with The Wire Report on Wednesday before the hearing began, the CEO of the Canadian Internet Registry Authority -- which also intervened in the case against the order -- said that the blocking order was a significant moment in Canadian governance of the Internet. "If you have a blocking regime that is not overseen by the regulators or doesn't have any kind of legislative or statutory moorings or anchors in law anywhere, I think that's a very, very difficult place for Canada to be in," Byron Holland said. "This is a fork in the road moment. How do we want the Internet to operate, and to whose benefit do we want the Internet to operate?" Speaking on the second day of the hearing, lawyers representing the respondents in the case argued that blocking orders are increasingly common. TekSavvy and the intervenors that support them, Barry Sookman told the court, "paint blocking orders as draconian." "This fails to recognize that blocking orders are nothing more than an internationally accepted evolution of injunctive relief developed to address the new harms caused by Internet piracy." He added that arguments that blocking orders infringed on freedom of speech have already been addressed 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. "The court said freedom of expression does not extend to the sale of unlawful goods," Sookman told the court. "The real issue, as far as freedom of expression is concerned in a blocking order case, is whether the rights of the ISPs or users are infringed. The Charter right to freedom of expression cannot apply to ISPs. ISPs are ... mere conduits for content transmitted by others," Sookman said. A blocking order therefore, he continued, must be measured against the rights of users. "The courts, internationally, do not consider freedom of speech rights of users to be violated by blocking access to content that is predominantly infringing. As in Canada, infringing content does not go to the core of protected expression, and users have no speech rights to receive infringing content." — Reporting by Michael Lee-Murphy at mleemurphy@thewirereport.ca and editing by Hannah Daley at hdaley@thewirereport.ca

GoldTV site-blocking order runs “roughshod” over parliament’s authority: TekSavvy

Broadcast | March 25, 2021

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GoldTV site-blocking order runs “roughshod” over parliament’s authority: TekSavvy

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