A recent court ruling in Quebec says that government mandated ISP level site blocking is unconstitutional.
The Quebec Superior court has made a very interesting ruling recently. The court says that government mandated ISP level site blocking is unconstitutional. While the ruling revolves around gambling websites, there could be broader implications when it comes to other forms of censorship currently being proposed in the country.
Michael Geist offers the following:
The court’s analysis delves into the creation of the rules and finds that its pith and substance was to increase provincial revenues and that it only affects health “very indirectly.” The court has little trouble concluding that the rules are unconstitutional as ultra vires the powers of the province [Google Translate version]:
The Tribunal has no hesitation in concluding that both the object and the effects of the Provincial Provision are, despite the social law in which the provincial legislature chose to insert it; a provision that operates directly in two areas of exclusive federal jurisdiction: telecommunications and the criminal law. The legal and practical effects of the Provincial Disposition are to govern gambling online through ISPs, which neither provincial jurisdiction authorizes. Its pith and substance is to prevent online gambling not set up and operated by the province from being “communicated” by ISPs and not the protection of consumers or their health. As in Johnson and Rogers cited above, the Tribunal considers that the Provincial Provision and in particular its section 260.35 must be ultra vires the powers of the province.
The Quebec government could still appeal the latest ruling, but its proposal was always on shaky legal ground.
The decision also includes a notable discussion on the CRTC’s net neutrality rules with implications for one of the arguments arising from the Bell website blocking coalition plan. The Quebec government argued that Section 36 of the Telecommunications Act permits an ISP to block illegal content. The court disagreed, citing the net neutrality rules and emphasizing that interfering with signals is limited to network threats:
In the Tribunal’s view, section 36 does not permit telecommunications companies to modify signals, whether legal or not, except in certain cases provided for in the regulatory policy such as the power to modify the signal to eliminate network threats. In fact, the CRTC left their door open as indicated by the Policy Telecom Regulatory 2009-657. The CRTC decides that the Internet traffic management practices (ITMPs) that ensure the protection or integrity of the network are not governed by this policy.
As Geist points out, it is possible for the government to appeal this, but should this ruling could heavily complicate efforts to implement website censorship in Canada by Fairplay Canada as well as the foreign record labels and movie studios. The effort to censor the Internet is basically a two pronged approach.
The first prong is at the regulatory level with a small handful of companies buying into the plan and lobbying regulators into implementing a Canada-wide censorship plan. The idea is that websites who are accused of copyright infringement be immediately blocked by ISPs. Canadian regulators would be in charge of maintaining a list of websites the copyright industry says should be blocked. Bell Canada, one of the members of the small coalition, even went further and said that there should not be any form of court oversight as well and that an accusation should be sufficient for censorship.
The other prong is at the federal government level. Music Canada, the Canadian arm of the Recording Industry Association of America (RIAA), is currently lobbying the Canadian government to implement Internet censorship through copyright reform. The idea, of course, being that should their partners at FairPlay Canada fail, then this would be the fallback plan.
Of course, with today’s ruling, a Canada wide censorship plan would prove to be much more complicated. Should this ruling stand, if one province says that site blocking is unconstitutional, how can the Canadian government or the Canadian regulator implement Internet censorship across Canada? At the very least, this ruling could provide further ammunition for those that support free speech. It provides an additional method of pushing back against censorship in the first place.
One way or another, this could be another headache for the pro-censorship lobbying effort.