Court must consider Charter rights in site-blocking case: BCCLA

Court mandated website-blocking is an "extraordinary" remedy and should only be granted sparingly, according to a court filing from the British Columbia Civil Liberties Association. The BCCLA has told the Federal Court of Appeal that if it is granted leave to intervene in TekSavvy Solutions Inc.'s appeal of a Federal Court judge's site-blocking order, it will seek to underline the freedom of speech implications of the remedy. "The protection of freedom of expression enshrined in the and elsewhere in Canadian law counsels caution in the granting of such relief," the Feb. 12 filing reads. "The impact of 'site-blocking' orders on freedom of expression appears to have been given little consideration in the decision now under appeal. The BCCLA seeks to intervene to remedy that." The BCCLA says it is not seeking to intervene on behalf of TekSavvy, but will rather "seek to assist this court by articulating considerations for granting site-blocking orders in the Canadian context." The site-blocking order, ordered in November and the first-ever in Canada, mandated that several independent internet service providers block a website called GoldTV that BCE Inc., Rogers Communications Inc., and Quebecor Inc. say was offering "pirate IPTV" content that infringed upon their copyright. “I am satisfied, in the face of a strong prima facie case of ongoing infringement and a draft order that seeks to limit blocking to unlawful sites and incorporates processes to address inadvertent over-blocking," judge Patrick Gleeson wrote in the order, "that neither net neutrality nor freedom of expression concerns tip the balance against granting the relief sought.” The order by its very nature, according to the BCCLA's request, is a limiting of "expressive content," but the organization concedes that the remedy "may be appropriate in proper cases." "The question, in BCCLA's view, is not whether such orders can ever be granted, but when and on what terms?" the filing reads. TekSavvy had opposed the site-blocking order in a two-day court hearing back in September, where the ISP's legal counsel argued that site-blocking was a "draconian" approach, especially given that the CRTC had already declined to establish or recommend establishing site-blocking regimes at the request of the companies. TekSavvy then appealed the order a week later on grounds that Section 36 of the Telecommunications Act required ISPs like TekSavvy to first get CRTC approval before blocking a given website. Documents filed with the Federal Court in early January show how the court expanded the site-blocking regime for GoldTV to include domains not in the original order, but that had sprouted up to direct traffic to the service. In a December letter, lawyers representing the telecom companies who requested the order asked ISPs to keep mum about the updated order, at least until it had been issued. The BCCLA is not the only civil society group to ask to intervene in the appeal, as both the Canadian Internet Registration Authority (CIRA) and the Canadian Internet Policy and Public Interest Clinic (CIPPIC) at the University of Ottawa are seeking to make the argument that the Federal Court overstepped its authority in issuing the site-blocking order. According to their respective requests for leave to intervene, CIRA will argue that “there are more effective and appropriate control points relating to the internet to address allegations of copyright infringement,” while CIPPIC will argue that site-blocking is not available under the Copyright Act. — With reporting by Michael Lee-Murphy at mleemurphy@thewirereport.ca and editing by Anja Karadeglija at akarad@thewirereport.ca

Court must consider Charter rights in site-blocking case: BCCLA

News | March 2, 2020

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Court must consider Charter rights in site-blocking case: BCCLA

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