Canadian ISP TekSavvy Appeals Internet Censorship Court Ruling

A recent court ruling saying that ISPs must censor websites that are accused of copyright infringement is being appealed by independent ISP TekSavvy.

Internet censorship has largely left Canadians untouched for the most part. This in spite of the fact that other jurisdictions experimenting with Internet censorship with largely disastrous results. Every time corporate copyright owners file a complaint and get a censorship order, the websites simply switch domain names, leaving the corporations back at square one. One of the biggest themes about Internet censorship is that it takes weeks or months to get a censorship order while it takes merely hours to circumvent the blockade, thus wasting everyone’s time and money.

Despite the obviously failed policy of Internet censorship, that doesn’t stop some from somehow getting the mistaken idea that, this time it’ll be different. This time, it’ll be different if we do the exact same thing in a different jurisdiction because we really should get different results. This in spite of the fact that there have been whole studies conducted on the subject of Internet censorship. Keeping in mind that countries censor content for a whole variety of reasons, one study conducted by the Open Rights Group in the UK shows that Internet censorship is a complete failure. While talking about censorship for the purpose of blocking pornography, the UK group said earlier this year the following:

Blocking websites isn’t working. It’s not keeping children safe and it’s stopping vulnerable people from accessing information they need. It’s not the right approach to take on “Online Harms”.

This is the finding from our recent research into website blocking by mobile and broadband Internet providers.

While not solving anything at all, the risks of creating a censorship regime is very real. Australia decided to experiment with Internet censorship back in 2014 when that country wanted to censor file-sharing websites. While it didn’t solve anything, censorship just spiralled out of control. It expanded into fan-sub websites to online conversion websites to competing retailers to content considered to be “violent crime”. Whatever the moral panic of the day was, that wound up being added to the list of things Australia will censor online.

Still, for corporate lobbyists, the disastrous implications of free speech is nothing. The only question for them is who they can sucker into jumping into the mass internet censorship game. During the same year that Music Canada (formerly CRIA) admitted that piracy is “drifting away“, copyright organizations banded together to form the so-called “FairPlay Canada” coalition. That corporate collective fiercely lobbied the Canadian government and Canadian regulator, the CRTC, to implement Internet censorship. After weighing all the evidence, the CRTC came the sensible conclusion of rejecting the Internet censorship proposal.

In the same year, Quebec ruled that ISP level censorship is unconstitutional.

Faced with the prospect of running out of options, the coalition and their few supporters went running to the Canadian government to demand that parliamentarians ignore all the precedent and evidence and just pass Internet censorship. While they were able to bend the ear of the Heritage committee by shutting out opposition and only allowing voices that agree with them, the Industry committee wound up allowing all expert opinion on the subject so they could weigh all the evidence. In the end, the Industry committee and Heritage committee wound up clashing, thus ultimately stalling the efforts earlier this year.

In spite of all the efforts of corporate interests to bring in Internet censorship, the push to shun evidence and precedent in favour of cracking down on free speech has remained largely stalled in Canada.

More recently, however, the issue seemingly has been revived thanks to the GoldTV case. Part way through November, a court ruled that ISPs must censor sites related to GoldTV. Michael Geist offered some analysis on the ruling:

It is also deeply flawed from both a policy and legal perspective, substituting the views of one judge over Parliament’s judgment and relying on a foreign copyright case that was rendered under markedly different legal rules than those found in Canada.

Perhaps most troubling is that the judge has created a substantive new policy framework for site blocking, an issue that given the many complex policy issues (including copyright enforcement, freedom of expression, net neutrality, and telecom competition) is best left to Parliament. Indeed, the activist judicial approach explicitly engages in an analysis that considers many of the policy issues but arrives at its own conclusion about how best to balance competing interests. These are issues that are best left to elected officials. The Standing Committee on Industry, Science and Economic Development, which completed the comprehensive copyright review earlier this year, heard extensive submissions from groups calling for reforms to the law to include site blocking.

Not only is the decision wrong from a policy perspective, it also rests on shaky legal grounds. The judge relies heavily on the UK Cartier site blocking case to establish a site blocking legal test. But that decision relies heavily on European directives, citing the E-commerce directive, the Information Society directive, and the Enforcement directive. In fact, in assessing whether a court could issue a site blocking order, the UK court concluded:

It seems to me to be clear from this guidance that Article 11 does indeed provide a principled basis for extending the practice of the court in relation to the grant of injunctions to encompass, where appropriate, the services of an intermediary, such as one of the ISPs, which have been used by a third party to infringe a registered trade mark. There is no dispute that the ISPs are intermediaries within the meaning of Article 11 and accordingly, subject to the threshold conditions to which I shall shortly come, I believe that this court must now recognise pursuant to general equitable principles that this is one of those new categories of case in which the court may grant an injunction when it is satisfied that it is just and convenient to do so.

In other words, the court’s analysis is premised on the existence of law beyond a general copyright provision on remedies that open the door to site blocking. In fact, the court explicitly states “I am satisfied for the reasons I have given that the court did have jurisdiction to make the orders in issue under s.37(1) of the 1981 Act as interpreted in light of Article 11 of the Enforcement Directive.”

The copyright law and the European directive worked together to establish the jurisdiction to issue the order in Cartier (note that a later UKSC decision, which addressed costs, noted in obiter that it thought an order could occur on equity grounds). In Canada, we do not have a similar provision. Parliament addressed the issue of sites that are primarily engaged in infringement in 2012 with the enabler provision, which introduces new enforcement powers against Canadian-based sites. It has thus far declined to change the law to target foreign sites with site blocking measures. To establish a Canadian site blocking system based on a different UK law calls into question the correctness of the decision.

In fact, an appeal would be exactly what has occurred. Last week, Canadian independent ISP, TekSavvy, appealed the ruling:

The TekSavvy notice of appeal argues that the blocking ruling contains several errors, including that:

  • an order to third party ISPs to engage in site blocking is available under the Copyright Act
  • Section 36 of the Telecommunications Act did not apply to the site blocking order
  • the test used for a mandatory injunction, particularly the reliance on factors from foreign jurisdictions (the significant reliance on the UK Cartier case)
  • the order is not compliant with the Charter of Rights and Freedoms

The judge’s dismissal of the CRTC and the Telecommunications Act is also troubling. The judge rules that the CRTC cannot interfere with a court order under Section 36 of the Telecommunications Act, which has been used to support net neutrality in Canada by prohibiting Canadian carriers from controlling the content or influencing the meaning or purpose of telecommunications unless the CRTC otherwise approves. Yet that the role of the Commission is precisely why the same companies seeking the GoldTV order asked the CRTC to establish a site blocking system. In the reply comments in the FairPlay case, the companies state that Section 36 “confirms that it is the Commission that should be engaged to determine the sites to which access should be disabled.”

The limited opposition to the order also highlights why it is so problematic. It is notable that only TekSavvy opposed the motion, while Distributel opposed certain terms in the blocking order. Bell, Fido, Rogers, and Videotron consented to the motion, while the remaining ISPs took no position. TekSavvy clearly had an impact, but with an evidentiary record dominated by the companies seeking the order and no intervenors to supplement the record, this was a one-sided case that merited far more participation and expertise, similar how the FairPlay record unfolded at the CRTC.

From a legal standpoint, the fact that only the independent ISP appealed the decision is, in fact, stark. ISPs in other countries do, indeed, fight censorship orders in court, so the question is, why are Canadian ISPs different. That can be explained by the business reality of what the major Canadian ISPs have become. Over the last several years, ISPs and major media outlets have been conglomerating to form massive corporations. Shaw/Rogers is owned by the same corporate entities that own things like TV stations. Bell Canada, another major ISP, is under the same umbrella as CTV, another major television and media organization.

Rewinding several years back, if such a court ruling were to happen, ISPs would’ve happily lined up to appeal this court ruling in droves. In fact, when the push for file-sharing lawsuits occurred in the mid-2000’s, ISPs pushed back on multiple fronts. One strategy was to bill for the man hours it would cost to track down customer information and logs for the purpose of handing over personal information to the record labels. Others said that they shouldn’t be obliged to follow such orders citing privacy concerns. Ultimately, they helped keep the failed file-sharing lawsuits from entering into Canada and wreaking havoc and mayhem on consumers like how it happened in the US. Arguably, if the courts decided at the time that, despite all the evidence, Internet censorship is OK, ISPs would be launching an all out offensive on the effort to undo the potential damage it would cause.

Likewise, if there was a push for file-sharing lawsuits today, major ISPs would largely throw their hands up in the air and say, “yup, I guess that’s what the court wants. We should just fold right here and now because we don’t want any trouble!” With the precedent set, of course, that is not likely going to happen.

The point is, ISPs now have a financial incentive to not only follow along with anti-consumer initiatives, but actively engage in them these days. This is thanks to the ownership that exists today. It would also explain why TekSavvy is the only ISP fighting this. They don’t necessarily have the same financial incentives to crack down on the Internet that other ISPs now have. The difference in behaviour in the courts from the mid 2000’s and now pretty much tells the story of how much things have changed from a business perspective – and, in turn, motivations.

What this latest ruling and appeal demonstrates is that internet censorship isn’t completely dead in Canada yet. One judge managed to single-handedly resurrect the anti-free speech movement from the grave in this country. The obvious hope is that TekSavvy’s appeal will shove garlic down censorships throat, put the corpse back in the grave, nail the lid shut, and rebury it in the ground again. All we can do now is wait to see if the appeals court is willing to hear the case. If what we saw in the current courts ruling is any indication, the probability seems pretty good at this point.

Drew Wilson on Twitter: @icecube85 and Facebook.

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