Court of Appeal upholds Canada’s first site-blocking order

The Court of Appeal has confirmed in Teksavvy Solutions Inc. v. Bell Media Inc., 2021 FCA 100, that the Federal Court has jurisdiction to make site-blocking orders requiring third-party internet service providers to block access to websites alleged to be providing copyright-infringing content.

What you need to know

• While site-blocking orders may engage internet users’ freedom of expression Charter rights, the Court of Appeal concluded that Federal Court judges need not engage in a detailed Charter analysis before exercising their discretion to grant the order.
• The proper test to be applied when determining whether to grant a site-blocking order is the RJR MacDonald test for a mandatory injunction: a strong prima facie case must be shown, instead of the usual low threshold that an applicant establish a “serious issues to be tried”.

What is a site-blocking order?

A site-blocking order is an order requiring a third-party internet service provider (ISP), who is not itself accused of any wrongdoing, to block its customers’ access to certain websites. Prior to Bell Media Inc. v. GoldTV.Biz, 2019 FC 1432, no Canadian court had ever made such an order. However, orders imposing obligations on third parties in the context of litigation (e.g., Norwich orders, which can impose disclosure obligations on innocent third parties) are not unprecedented and have recently become common in copyright infringement lawsuits related to unauthorized downloading of movies.

The underlying dispute

Bell Media Inc., Groupe TVA Inc. and Rogers Media Inc. started an action against two individuals doing business as goldtv.biz and goldtv.ca for copyright infringement. The defendants’ websites were accused of illegally streaming the plaintiffs’ content online. The plaintiffs had obtained an injunction restraining the defendants from continuing to stream the copyrighted content. The defendants neither complied with the injunction nor responded to the action. The plaintiffs then sought a site-blocking order requiring nine Canadian ISPs to block access to the defendants’ websites. They cited the defendants’ failure to comply with the court orders, as well as difficulties identifying the defendants. One ISP, Teksavvy Solutions, opposed the motion on the basis that the Federal Court had no jurisdiction to make a site-blocking order and that such an order raised significant freedom of expression issues under the Charter of Rights and Freedoms. The Federal Court dismissed Teksavvy’s objections and granted the site-blocking order for a two-year period. Teksavvy appealed.

The Federal Court of Appeal decision

In a unanimous decision, the Federal Court of Appeal upheld the motion judge’s decision to grant the site-blocking order. The Court concluded that the Federal Court had jurisdiction to grant the order, gave sufficient consideration to freedom of expression issues and appropriately concluded that the RJR MacDonald test for granting such relief was satisfied.

Jurisdiction

The Court of Appeal determined the Federal Court had jurisdiction to grant site-blocking orders under sections 4 and 44 of the Federal Courts Act, which set out the Federal Court’s equitable jurisdiction and power to grant injunctions. It also found jurisdiction to grant the order under the Copyright Act, which entitles a copyright owner to “all remedies” including injunctions “that are or may be conferred by law for the infringement of a right”. The Court of Appeal also rejected Teksavvy’s argument that the order was contrary to section 36 of the Telecommunications Act, which provides telecommunications carriers “shall not control the content” of telecommunications carried for the public. The Court of Appeal concluded that this general wording did not displace the Federal Court’s powers to grant injunctions or impose a site-blocking order. The Court found support for this view in the Supreme Court of Canada’s decision in Google Inc. v. Equustek Solutions, where the Court concluded Google’s “content neutral character” was not an obstacle to issuing a de-indexing order.

Freedom of expression

The Court was skeptical of Teksavvy’s argument that ISPs free expression rights were engaged by providing customers with access to websites, in part because of their obligation of neutrality. However, the Court accepted that internet users’ expressive interests could be impacted by site-blocking orders. Nonetheless, it concluded that a detailed Charter analysis was unnecessary in this case because the Court could consider freedom of expression in to assessing the balance of convenience, as the Supreme Court had done in Equustek.

Applicable legal test

The legal test applicable to granting site-blocking orders is the same test applicable to mandatory interlocutory injunctions—the RJR MacDonald test. A person seeking such an order must show: 1) a strong prima facie case, 2) irreparable harm and 3) that the balance of convenience favours granting the order. The Court of Appeal agreed with Teksavvy that the motion judge applied the wrong threshold at step (1) by requiring only a “serious issue to be tried”. Despite this, it concluded that the error did not affect the result, since the Federal Court found that the plaintiffs had a strong prima facie case.

The Court of Appeal agreed with the motion judge that all three elements of this test were satisfied in this case. This included the judge’s finding of irreparable harm to the plaintiffs based on ongoing copyright infringement by defendants who are anonymous. The Court also dismissed Teksavvy’s arguments that the balance of convenience weighed against granting the order because it has had to be updated several times to deal with efforts to circumvent it, and it is overinclusive because it blocks content for which the plaintiffs have no rights. The Court of Appeal concluded the judge had appropriately considered these arguments and his analysis did not disclose any palpable and overriding error.

Available but not automatic

This case is unlikely to be the last in which copyright owners seek site-blocking orders. It remains to be seen whether the facts of this case will prove to be unique or if other copyright owners will be able to provide evidence to satisfy a judge that such an order is justified in other circumstances.

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