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Canadian ISP takes web-blocking debate to the country’s Supreme Court

By | Published on Friday 27 August 2021

Canadian internet service provider TekSavvy is taking its battle against web-blocking in Canada to the country’s Supreme Court. The net firm argues that the case raises important questions regarding free speech and net neutrality.

TekSavvy has been busy in recent years trying to stop the Canadian courts following the lead of their English counterparts in issuing web-block injunctions against websites that copyright owners claim mainly existing to facilitate copyright infringement.

Web-blocking, where ISPs are forced to stop their customers from accessing specific copyright infringing websites, has become a favoured anti-piracy tactic of the music and movie industries in those countries where such injunctions are available.

In some countries, copyright law has been specifically amended to allow web-blocks, while in others – like the UK – the courts just decided they already had the power to issue injunctions of this kind.

In Canada, it’s actually other internet companies that have been trying to get web-blocking going, albeit internet companies that are also cable TV providers. Having failed to persuade the country’s tel-co regulator the CRTC to take the lead on web-blocking, the net firms went to court seeking a big old web-block against GoldTV, an unlicensed video service.

It’s quite common for ISPs – especially those that are not also TV or media companies – to initially oppose web-blocking when it is first proposed in any one country. Although, quite often, once the courts start issuing injunctions, most ISPs just fall in line. But sometimes you will get an internet company – like TekSavvy in Canada – that takes the battle on through the appeal courts.

TekSavvy did just that after the Canadian Federal Court issued a web-block injunction against GoldTV in 2019. But in May this year, the Federal Court Of Appeal in Canada upheld the lower court’s decision, rejecting TekSavvy’s arguments that web-blocking violates Canadian laws that protect free speech and net neutrality.

Requesting that the Canadian Supreme Court now intervene in the case earlier this week, TekSavvy mainly presented the same arguments already heard in the lower courts, in particular that the country’s copyright laws don’t specifically allow for web-blocking and that web-blocks don’t really work, plus those aforementioned concerns regarding free speech and net neutrality.

“This case concerns the first-ever order by a Canadian court to block access to a website”, the ISP’s legal filing states. “This site-blocking order was made without a statutory basis and without any meaningful consideration of the expressive freedoms of internet users”.

The lower courts, it adds, “added a new arrow to copyright owners’ quiver that disrupts the balance Parliament struck between the interests of copyright stakeholders. Since a site-blocking order is effectively a final remedy, judicial recognition of site-blocking risks displacing and overtaking Parliament’s carefully-crafted statutory regime for copyright remedies”.

With that in mind, it goes on, the Supreme Court’s guidance is now required “to clarify the proper roles for courts and Parliament in determining what means are available for copyright enforcement”.

Restating its concerns regarding web-blocking, the legal filing goes on: “The approach taken by the courts below, which gives scant recognition to the order’s impact on expressive rights, has the potential to profoundly reshape how copyright owners fight infringement online”.

“Further, a site-blocking order is incompatible with the statutorily mandated neutrality of ISPs as common carriers, requiring as it does that ISPs police traffic on their networks rather than being the conduits of internet traffic, as required by legislation”.

It remains to be seen whether the Supreme Court takes on the case. If it does, the Canadian music and movie industries, and the wider tech sector, all of which made submissions during the earlier stages of this dispute, will follow any proceedings in the top court very closely.