Internet Censorship Creep Expands in Canada Without Court Oversight

Canadian internet censorship has expanded for the first time since the GoldTV ruling. Independent ISPs were also told to shut up about it too.

The GoldTV case came about at the end of November. It marked the first time corporate directed Canadian Internet censorship entered the Canadian system. By early December, independent ISP, TekSavvy, appealed the ruling. The appeal points out many glaring errors made by the judge. One of those errors is the fact that the Canadian judge ignored Canadian precedence and law and, instead, opted to rely on UK law and UK case law. Many experts pointed out the obvious fact that this is not how case law works in Canada.

Of course, while this marks a beginning in putting in place Internet censorship in Canada, it is by no means going to be the only instance of this. In fact, now that the legal system has, for now, been cracked by multinational corporate interests, it seems that the floodgates of Internet censorship is only beginning to hit. In a report posted by The Wire Report, it seems that corporations are already attempting to add websites to the Canadian censorship lists.

The expansions do not have any court oversight. In fact, the appeals process for the GoldTV case has barely even begun. Yet, barely a month later, we are already seeing the censorship lists expanding. From the report:

Fresh documents are shedding light on how Canada’s first piracy case involving court-ordered website-blocking is playing out — revealing methods used by BCE Inc. to keep up with an expanding list of sites, and that Bell, Rogers Communications Inc. and Quebecor Inc. sent a letter asking third-party ISPs to keep mum about their request for new additions.

Bell investigators posed as customers seeking to purchase subscriptions to the pirate IPTV service targeted by the blocking order, affidavits filed with the court show. In poorly-spelled emails offering rudimentary customer support, the resellers of GoldTV directed the investigators toward other domains through which the investigators — posing as customers — could access the pirated service.

The domains they were given have now been added to an updated blocking order, issued on Dec. 20, which third-party ISPs such as TekSavvy Solutions Inc., Distributel Communications Ltd., and Cogeco Inc. must block customers from accessing.

That update is the first time the list has been expanded to include new domains not identified in the original November order — which was the first time Canadian courts ordered sites to be blocked for copyright infringement.

Another document in the case obtained by The Wire Report reveals that lawyers representing Bell, Quebecor, and Rogers also sent a letter privately asking the third party ISPs to keep quiet about the update until it was approved by the court. That letter was not included in the publicly-available court file available in Federal Court in Ottawa on Jan. 8.

The article also points to a letter (PDF) which says, in part:

The present letter is accompanied by a number of documents served upon the Third Party Respondents in the above-captioned matter, including an update to Schedule 1 to the Order of Mr. Justice Gleeson dated November 15, 2019.

In order to ensure that the Order remains effective, the Plaintiffs respectfully ask that the Third Party Respondents refrain from publicizing the contents of the updated Schedule 1, including the domains and subdomains listed therein, until an Order requiring its implementation is issued, as applicable.

In short, they are adding domains without any court oversight. Not only that, but ISPs are being actively encouraged to continue adding domains to the Internet censorship lists as well. The most disturbing aspect is the fact that non of this is being monitored by the courts. In fact, there is absolutely no oversight whatsoever in all of this. Instead, ISPs are attempting to collude with others to censor more sites and that all of this be kept secret until they get permission from the courts.

As the report points out, law experts were stunned that this is happening outside of the court process:

“There is something extraordinary about the request,” University of Toronto law professor Ariel Katz said in a phone interview.

According to Katz, the fact of the letter demonstrates that there is not an adequately adversarial process with regards to site-blocking, with no representation for the public interest. The only party to appeal the website blocking is third-party ISP TekSavvy, in an ongoing court case.

“Normally, someone asks for an order, [and they] file something with the court. This is public information. And if you want to prevent it from being public, then you have to make your case to the court that it should not be made public, that it should be made behind closed doors.

“Even if the other parties agree [to the request in the letter], the court has to independently decide, because it’s in the interest of the public in open court. It’s not private arbitration,” Katz said.

“The ISPs, they have their own interests, but they don’t stand in to represent the interests of the general public, nor should they. They’re commercial companies who care about their own business: they’re not the government or anyone else that’s supposed to consider the interest of the public.”

The report goes on to say that the censorship list has grown from 12 domains to 23 domains as a result of the request.

As we’ve been pointing out for the better part of a year, if one were to ask where this is headed, just ask Australia. As some might recall, Australia passed Internet censorship laws back in 2014. Ever since then, Australian Internet censorship simply spiralled out of control. In 2018, they expanded Internet censorship laws to include websites that had a “primary effect” of piracy instead of a primary purpose. After that, the censorship flew increasingly off the rails with the inclusion of fan-sub sites, online conversion sites, competing retail sites, and “violent crime“. To this day, there is no solid evidence that says that censorship has benefited the country.

What is disturbing in all of this is the fact that major ISPs are attempting to skirt court oversight in all of this and hoping that everyone simply agrees to arbitrary censorship. This ultimately raises a whole can of worms with regards to free speech. If, for instance, a news website gets censored, what recourse does the operator have for a loss in traffic? Assuming ISPs would actually agree to this, what would happen if union action happens against a major ISP? What if the ISPs then start adding those sites to the blacklists because they have financial motivation to do so?

At any rate, we are barely a couple months in to this censorship business and things are already getting very messy. No doubt we’ll here more about this story in the months ahead given how quickly developments are happening.

Drew Wilson on Twitter: @icecube85 and Facebook.

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