On May 26, 2021, the Federal Court of Appeal released its much awaited decision in Teksavvy Solutions Inc v. Bell Media Inc.1 The Court unanimously affirmed the site-blocking order (the “Order”) issued by the Federal Court against Teksavvy and a number of other Canadian Internet Service Providers (ISPs) requiring them to block their customers from accessing certain websites. Effectively, the Order prevents the ISPs’ customers from accessing infringing content streamed through illicit websites at goldtv.biz and goldtv.ca.
The underlying action involved a copyright infringement claim by three major Canadian broadcasting companies — who either owned the Canadian rights to transmit the programming in question or were exclusive licensees of those rights — against two unidentified defendants who were operating websites providing subscribers access to copyrighted programming content over the Internet.
The Federal Court of Appeal’s decision dealt with three primary issues: 1) whether the Federal Court had jurisdiction to grant the Order; 2) if so, the relevance of freedom of expression with respect to that Order; and 3) whether the Order was just and equitable.
The Federal Court’s Power to Impose a Site-blocking Order
In the Federal Court, Justice Gleeson relied on sections 4 and 44 of the Federal Courts Act2 in concluding that he was empowered to grant the Order. In combination, these provisions provide the Federal Court “with equitable jurisdiction to grant injunctions”. Following the Supreme Court of Canada’s decision in Google Inc v Equustek Solutions Inc3, he held that this power is unlimited, “subject to any relevant statutory restrictions”. He also cited sub-section 34(1) of the Copyright Act4, which effectively entitles the owner of copyright to all remedies that may be conferred by law for an infringement of a right. Accordingly, he found that the Order is one of the remedies available to address copyright infringement.
On appeal, Teksavvy argued that several provisions of the Copyright Act and the Telecommunications Act5 exclude site-blocking orders from the scope of the injunctions that can be issued by the courts. In Teksavvy’s view, nothing in the Copyright Act provides explicitly for a site-blocking order, and that “Parliament’s choice to so limit the remedies available against ISPs indicates that it did not wish to grant copyright owners the more powerful remedy of site-blocking orders against ISPs.”6 Additionally, the Federal Court lacked jurisdiction since section 36 of the Telecommunications Act contemplates net neutrality and prohibits ISPs from restricting content transmitted to their users, and that this prevents the Federal Court from ordering an ISP to block a website. Any exceptions to net neutrality must be approved by the Canadian Radio-television and Telecommunications Commission (CRTC) according to a prescribed two-step process.
The Federal Court of Appeal rejected Teksavvy’s argument that the Order is not a remedy contemplated by the Copyright Act. In reaching this conclusion, the Court held that there are examples of remedies having been awarded that are not specifically mentioned in the Copyright Act, such as Norwich Orders, Mareva injunctions, and punitive damages.7
With respect to net neutrality, the Court found that the “general wording of section 36 of the Telecommunications Act does not displace the Federal Court’s equitable powers of injunction, including the power to impose a site-blocking order.”8 The Court went on to say that the purpose of section 36 was to prohibit a Canadian Carrier, including an ISP, from controlling content or influencing the meaning or purpose of telecommunications carried by it for the public, and that complying with a Court ordered injunction does not amount to controlling or influencing content. To the contrary, it is the ISP that is being controlled or influenced by the Order.9
Freedom of Expression
Teksavvy claimed that the Order violated the Canadian Charter of Rights and Freedoms right to freedom of expression.10 It argued that the Order affected the freedom of expression of two groups: the ISPs who are required to block certain websites, and their customers who would otherwise have access to those websites.
The Court rejected both arguments. First, as an ISP, Teksavvy does not engage in any expressive activity. Given that it is acts as a common carrier, it should not, and presumably does not, show any preference for one website over another based on its content. Thus, its everyday activities in issue are not expressive, and do not engage freedom of expression.11
Second, while the Court found that Teksavvy’s customers could have an expressive interest that is implicated by the Order, the Court held that it was not necessary for Justice Gleeson to engage in a detailed Charter rights analysis separate and distinct from the balance of convenience analysis that is already to be considered as part of an injunction motion. The Court held that this is clear from the Supreme Court of Canada’s decision in Equustek, where the majority of the Court did not engage in a separate Charter rights analysis.12
Whether the Order was Just and Equitable
The Court found no error in Justice Gleeson’s conclusion that a strong prima facie case of copyright infringement had been made against the defendants and that the copyright owners would suffer irreparable harm absent the Order due to the ongoing infringement carried out by unknown defendants.
With respect to the balance of convenience analysis, Teksavvy argued that the Judge erred by fettering his discretion and relying on factors from UK jurisprudence that is not binding. The Court rejected this argument. First, the Court recognized that Justice Gleeson correctly stated the fundamental question when considering the motion, namely, whether the injunction was just and equitable in all of the circumstances. Second, the Court recognized that this was a motion for an unprecedented order in Canada and that it was appropriate for Justice Gleeson to consider foreign laws as “inspiration”. Lastly, the Court cited Teksavvy’s failure to specifically identify one or more of the foreign factors used by Justice Gleeson as inappropriate.
The Court ultimately held that Order was just and equitable and that there was no error in Justice Gleeson’s analysis of the applicable legal test and no error in the conclusion that the Federal Court had the power to grant the Order.
This decision of the Federal Court of Appeal affirms the availability of site-blocking orders aimed at combating copyright infringement by illicit websites, servers, and services, and the courts’ ability to issue “dynamic” orders which can be updated to reflect the circumvention efforts used by defendants after the order has already been made, as well as the particular circumstances of the infringement. Additionally, this case would permit “live” orders that are operative during ongoing broadcasts. While the order here applied to streamed TV programming, it appears that such orders could also be available in respect to other copyrighted works, as the decision was not content dependent.
The decision is significant because it addresses head on arguments predicated on net neutrality and freedom of expression as it relates to site-blocking orders. In this respect, the Canadian courts are joining the courts of other countries that have similarly rejected these arguments, including courts in Mexico, India, the European Union, and the United Kingdom.
It will be worthwhile to monitor legislative movements toward amending the Copyright Act to include a specific mechanism for obtaining blocking orders, modeling similar “no fault” provisions that exist in Australia, the European Union, and Singapore.13 The Government of Canada is considering this type of provision in its current consultation on copyright reform for Online Intermediaries.14