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Website Blocking Comes To Canada With Federal Court Ruling

Consumer advocates fear a new era of web censorship.
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MONTREAL ― In what is believed to be a first of its kind in North America, a Canadian court has ordered internet providers to block access to a website, raising concerns among consumer advocates that the country has entered a new era of web censorship.

The Federal Court late last week granted a request from a group of telecoms to block access to and, a website accused of illegally offering access to copyrighted TV programming.

Although website blocking orders have become common in some countries, such as Australia, Russia and the U.K., this is believed to be the first time that a court anywhere in North America has made such a ruling.

Watch: Canadians’ top complaints about telecoms. Story continues below.

The lawsuit was brought by three telecoms: Bell, Rogers and Quebec’s TVA. Most other major telecoms were named as “third party respondents” as the ruling affects them. Of those internet providers, only Ontario-based TekSavvy opposed the ruling.

The identities of GoldTV’s owners are unknown, and they are referred to as “John Doe” in Court records.

TekSavvy argued that the order to block GoldTV would be the beginning of a new web censorship regime in Canada.

“A blocking order is a grave violation of network neutrality and a fundamental change to what we do as internet service providers,” said Andy Kaplan-Myrth, vice-president of regulatory and carrier affairs at TekSavvy, in an email to HuffPost Canada.

“The principles of common carriage and network neutrality mean that ISPs operate dumb pipes that carry bits. All ISPs should defend the basic principle that we are not liable for or responsible for the content of the traffic on our networks.”

However, the Federal Court disagreed, citing a British precedent that asserted courts can force ISPs to block websites if not doing so could result in public harm.

In a statement released through the law firm representing them in the case, Bell, Rogers and TVA said content theft “remains a critical threat to Canada’s creative sector, impacting rights holders and creators across the industry and causing hundreds of millions of dollars in damages and thousands of lost jobs.

“Similar orders are regularly issued by courts in other countries, including the United Kingdom, Australia and France, and require internet service providers to simply disable access to sites distributing illegal content. Our clients have now been granted the same remedy in Canada.”

The ruling applies to 14 Canadian internet providers, including Bell, Cogeco, Distributel, Rogers, TekSavvy, Telus and Videotron, covering the vast majority of internet customers in Canada. Critics such as TekSavvy point out this means internet users could still access GoldTV by switching to one of the many smaller providers who have not been ordered to block the site.

“As unsympathetic as GoldTV may be, TekSavvy’s view is that it does not represent such an urgent harm to the plaintiffs or to society that stopping its copyright infringing activities would justify such a fundamental change in the nature of the internet in Canada,” Kaplan-Myrth said.

He didn’t say whether TekSavvy is planning to appeal the ruling, but said the company is considering all its options.

Turning European?

The ruling comes amid plans by the federal Liberal minority government to overhaul Canada’s copyright and internet laws, a plan some observers say mirrors controversial policies adopted by some European Union countries.

Among the Liberals’ proposals is a law borrowed from Germany that requires social media companies to remove illegal content ― such as hate speech or incitement to terrorism ― from their platforms within 24 hours, or face penalties.

Another proposal, borrowed from France, would levy a three-per-cent tax on internet giants’ revenues in Canada, in an attempt to keep Facebook and Google from siphoning off Canadian ad revenue tax-free.

There are also plans to require streaming services such as Netflix to produce Canadian content, despite evidence that Netflix itself is already spending more on Canadian TV production than all other English-language broadcasters combined.

“The shift toward greater content regulation marks a dramatic change in policy,” wrote Michael Geist, a prominent professor of internet and e-commerce law at the University of Ottawa.

“Given the emphasis on freedom of expression in the Charter of Rights and Freedoms, Canada has traditionally tread lightly with respect to internet content regulation.”

“A blocking order is a grave violation of network neutrality and a fundamental change to what we do as internet service providers.”

- Andy Kaplan-Myrth, TekSavvy

The legal victory for copyright holders comes as other avenues for combating piracy in Canada narrow. Most recently, the Federal Court rejected a motion by U.S.-based filmmaker Voltage Pictures to launch a “reverse class action” lawsuit in which thousands of defendants would be sued at once for downloading movies owned by Voltage.

Last year, the Canadian Radio-television and Telecommunications Commission (CRTC) rejected a proposal by a group of copyright holders ― including all the plaintiffs in the GoldTV case ― to create a permanent blacklist of websites to be banned for copyright infringement.

In that decision, Canada’s telecom regulator said it would be stepping on Parliament’s toes to set up such a blacklist.

In its ruling last week, the Federal Court asserted it has the jurisdiction to block websites, rejecting TekSavvy’s argument that it should defer to Parliament until the new digital rules are in place.

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