Dynamic Blocking Orders Available In Canada: Rogers Media

• Published date: 08 June 2022
• Law Firm: McCarthy Tétrault LLP
• Author: SnIP/ITs Blog and Barry B. Sookman

Orders requiring ISPs to block websites that make available copyright infringing materials are commonly made in many countries around the world. The courts' equitable jurisdiction to make such orders in Canada was recently approved by the Federal Court of Appeal in the Teksavvy Solutions Inc. v. Bell Media Inc. 2021 FCA 100 (GoldTV), (leave to appeal to the Supreme Court dismissed). In the recent ruling, Rogers Media Inc et al v John Doe 1 et al 2022 FC 775, the Federal Court issued a dynamic blocking order to require Canada's leading ISPs to block access to streaming servers that provide unauthorized streams of NHL games in real time.

Dynamic blocking orders permit blocked online locations to be updated without requiring additional court orders to address circumvention actions by pirate operators. These latter orders have been used in some jurisdictions because, among other things, users are increasingly turning to unauthorized IPTV set-top boxes, apps and services to access infringing streams, rather than just freely accessible "linking" websites running on computers

Dynamic blocking orders are commonly made in other countries such as the UK, Ireland, and elsewhere in the EU. However, the dynamic blocking order made in Rogers Media is the first time such an order was made in Canada.

The reasons for decision of Justice Pentney for granting the order were extensive (113 pages). Like the reasons for decision rendered by the Court of Appeal and the Federal Court in GoldTV, the court did not accept many of the objections to the proposed blocking order made by CIPPIC and some ISPs that had objected to it.

Infringement by unauthorized streaming servers

The court had little difficulty concluding that there was a very strong prima facie case that the unauthorized streaming of NHL games infringed copyright holders' right to communicate the games to the public.

As noted above, the Plaintiffs hold the exclusive right to communicate to the public all live NHL games through TV broadcast and online streaming. Pursuant to section 3 of the Copyright Act, the Plaintiffs have the sole right to broadcast this content, or to authorize its communication to the public. Under section 27(1) of the Copyright Act, any person who communicates this content to the public without the owners' consent is infringing the Plaintiff's copyright.

The evidence shows that the unnamed Defendants are responsible for the unauthorized communication to the public in Canada of the Plaintiffs' broadcasts of live NHL games. I agree with the Plaintiffs that the Defendants' actions do not fall within the statutory exception limiting the liability of those who only provide the "means" of telecommunication, set out in subsection 2.4(1) of the Copyright Act. The evidence shows that the Defendants are not merely the conduit of the transmission of the copyright material; rather, they have pirated it and arranged for members of the public in Canada to gain access to it through the infrastructure that the Defendants have set up. This involves deliberate and elaborate efforts - involving substantial investments - to capture and stream the Plaintiffs' copyright material.

Irreparable harm

Justice Penteny had little difficulty concluding that the media plaintiffs satisfied the "irreparable harm" criteria needed to obtain the interlocutory...