The Federal Court of Appeal’s ruling saying the Federal Court can issue orders requiring internet service providers (ISPs) to block access to certain websites can infringe freedom of expression, B.C.’s Civil Liberties Association (BCCLA) says.
“This is known as a site-blocking order,” Justice George Locke said in the May 26 unanimous, three-judge decision in Teksavvy Solutions Inc. v. Bell Media Inc.
The civil liberties watchdog has maintained the case could have far-reaching implications for constitutional freedom of expression rights.
“The Federal Court of Appeal does not seem to have given much consideration to the serious potential for infringements of Canadians' Charter rights to freedom of expression,” BCCLA lawyer Megan Tweedie said. “The ability of artists, journalists, politicians and scientists to freely express themselves online may be at stake if overly expansive site-blocking orders are issued in the future.”
Locke said the appellant argued the blocking order affected the freedom of expression of two groups: the internet service providers (ISPs) required to block certain websites, and their customers who would otherwise have access to those websites.
But, Locke said, he had difficulty accepting that ISPs like the appellant engaged in any expressive activity in providing customers with access to certain websites.
Tweedie expressed further dismay that the court had not provided a test for issuing site-blocking orders that would be workable in all circumstances.
“Without a clearly defined test for issuing site-blocking orders, there is too high a risk of overly broad restrictions being placed on internet content,” Tweedie said.
The case, which began hearings March 24, followed a December 2019 Federal Court of Canada ruling ordering blocking of websites allegedly using other companies’ copyrighted materials.
It involved streaming television services that infringed on the copyrights of major Canadian media companies. In 2019, the Federal Court ordered Canadian ISPs, including Teksavvy, to block access to the infringing sites. This was the first time that a Canadian court had ordered an ISP to block access to a website.
The case involved 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 claimed the defendants operated 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.
Acting as an intervenor in the case, the BCCLA had asked the court to preserve Canadians' freedom of expression rights if the court forces internet service providers to comply with site-blocking orders. Such orders violate the Charter rights of website operators, the ISPs’ customers and the Canadian public, the BCCLA said.