Website-blocking case could have far-reaching effects on freedom of expression: BCCLA

Site blocking fight in court

An Internet case currently before Canada’s federal Court of Appeal could have far-reaching implications as constitutional freedom of expression rights may hang in the balance in a website-blocking court battle between an Internet service provider (ISP) and telecommunications giants.

The case, which began hearings March 24, follows a December 2019 Federal Court of Canada ruling ordering blocking of websites allegedly using other companies’ copyrighted materials.

The parties argued in Federal Court that the case is about handling copyright violations. However, observers say what the Federal Court of Appeal decides after hearing the case could have far-reaching effects.

The British Columbia Civil Liberties Association (BCCLA), as an intervenor, has asked the court to preserve Canadians' freedom of expression rights if the court forces Internet service providers to comply with site-blocking orders. These orders violate the Charter rights of website operators, the ISPs’ customers and the Canadian public, the BCCLA said.

"Used incorrectly, site-blocking orders violate Canadians' rights to freedom of expression and can have serious consequences,” BCCLA lawyer Megan Tweedie said. “The ability of artists, journalists, politicians and scientists to express themselves freely online are at stake. If the court is going to permit site-blocking orders, then it must also provide strict limits on their usage, taking into account the impact on free expression."

The case involves telecommunication giants Bell Media Inc., Groupe TVA Inc. and Rogers Media Inc. as complainants against anonymous operators of goldtv.ca, goldtv.biz or GoldTV Services as defendants.

The telecommunications companies claim the defendants are operating unauthorized subscription services that provide subscribers with access to the companies’ programming content over the Internet contrary to Canada’s Copyright Act.

Third-party respondents in the case include Bell Canada, Fido Solutions Inc., Rogers Communications Inc., Videotron Ltd., Bragg Communications Inc. doing business as Eastlink, Saskatchewan Telecommunications, Shaw Communications Inc., Telus Communications Inc., Communications Limited and Cogeco Connexion Inc. and Teksavvy Solutions Inc.

A BCCLA court filing said the federal court case only had to decide the case before him but in doing so created a test to be used whenever a complainant seeks to force a third-party ISP to block its own customers’ access to third-party web sites.

“This court must set its sights higher,” the BCCLA told the appeal court. “If internet-blocking injunctions are a remedy available in Canadian law, that remedy cannot be granted without anxious judicial consideration of the impact of that remedy on the freedom of expression rights of the order’s target, the ISP’s customers, and the public.”

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