Site Blocking Orders Come To Canada: GoldTV.biz

In an important decision released Friday, the Federal Court of Canada issued the first Canadian site blocking order against sites that predominantly facilitate copyright infringement. The order made by Justice Gleeson, in a carefully reasoned decision in Bell Media Inc. et al v GOLDTV.BIZ 2019 FC 1432, ordered certain ISPs in Canada to block access to pirate subscription streaming sites (GoldTV.biz and GoldTV.ca) that were infringing the copyrights of the plaintiffs Bell Media Inc., Groupe TVA Inc, and Rogers Media Inc.

The order was granted following two prior injunction orders which were not effective against the anonymous site operators to stop the unauthorized subscription services of the plaintiffs' programming over the Internet. The injunction was opposed by Teksavvy but was unopposed by the other ISPs, Eastlink, TELUS, Distributel (except with respect a term in the order), Cogeco, Fido, Videotron, Bell Canada, and Rogers Communications.

The Court made a number of important holdings in deciding that the site blocking order should be granted.

Did the Court have jurisdiction to issue a site-blocking order?

The Court had little difficulty in concluding that it had the jurisdiction under sections 4 and 44 of the Federal Courts Act to grant the injunction pursuant to its equitable powers to grant injunctions where "just and convenient". This broad jurisdiction has been used in the UK to grant site blocking orders.1 The leading UK case which authoritatively established the jurisdiction was Court of Appeal decision in Cartier International AG v. British Sky Broadcasting Ltd., [2016] EWCA Civ 658 ("Cartier CA"). This equitable jurisdiction was confirmed by the UKSC in Cartier International AG v. British Telecommunications plc, [2018] UKSC 28 ("Cartier UKSC"). In Google Inc. v. Equustek Solutions Inc., 2017 SCC 34, the Supreme Court of Canada also used this jurisdiction to grant a world-wide de-indexing order against the non-party respondent Google. On this basis there could be little doubt about the Court's jurisdiction to make a site blocking order.

Should the Court decline to exercise its jurisdiction?

The Court also considered whether there were any reasons not to exercise its jurisdiction to make the order.

Teksavvy had argued that the remedies under the Copyright Act are exhaustive and do not include site-blocking orders. This was not accepted by the Court in view of the broad wording in s.34(1) of the Act which "includes the right to seek relief against a non-party in circumstances where that non-party facilitates, albeit innocently, the harm being complained of (Equustek at para 31)." The Court also held that Parliament's decision not to include an express site blocking regime as part of the Copyright Modernization Act, such as the ones that exist in Australia and Singapore, did "not equate to Parliament prohibiting this Court from exercising its equitable jurisdiction to issue a site-blocking order." The breadth of s.34 was also inconsistent with any such assertion.

The Court also considered whether s.36 of the Telecommunications Act and the decisions and policy documents of the CRTC were reasons not to make an order.2 The Court held they were not. First, because, as the CRTC had held in Telecom Decision CRTC 2018-384 (Fairplay) as "section 36 confers authorizing power and not a mandatory power, the power to mandate blocking must be found elsewhere and must relate to the subject matter that is clearly within the Commission's jurisdiction under the Telecommunications Act". Second, the Court accepted the CRTC opinion that "Parliament intended the Copyright Act to be an exhaustive regime" and absent "clear statutory language to the contrary, where the essential character of the dispute is one of copyright, remedies are to be found in the Copyright Act".

The Court also considered whether an ISP could comply with a blocking order without prior approval of the CRTC. The Court held it could. Relying on the Supreme Court of Canada decision in Reference re Broadcasting Act, 2012 SCC 4, the Court stated that s.36 of the "Telecommunications Act cannot be interpreted or applied in a manner that would allow the CRTC to interfere with an order of the Court aimed at impeding further infringement of rights under the Copyright Act".

What is the test to be applied in deciding whether to make a site blocking order and why the site blocking order was granted

The Court gave lengthy reasons for deciding to grant the site blocking order. In this regard...