TekSavvy Takes Pirate Site Blocking Battle to Canada’s Supreme Court

In 2018, Canada’s Federal Court approved the country’s first pirate site-blocking order.

Following a complaint from major media companies Rogers, Bell and TVA, the Court ordered several major ISPs to block access to the domains and IP-addresses of pirate IPTV service GoldTV.

There was little opposition from Internet providers, except for TekSavvy, which quickly announced that it would appeal the ruling. The blocking injunction threatens the open Internet to advance the interests of a few powerful media conglomerates, the company said.

After a long appeal process, Canada’s Federal Court of Appeal concluded earlier this year that the blocking order can stay in place. According to the Court, site-blocking injunctions are an available option under the Copyright Act and they don’t violate freedom of speech or net neutrality.

Supreme Court Application

The decision came as a disappointment to TekSavvy, which hasn’t given up the fight just yet. A few hours ago, Andy Kaplan-Myrth, vice-president of regulatory affairs, announced that his company had asked Canada’s Supreme Court to hear the case.

The ISP stresses that the issues at stake are too important not to appeal. The company is not trying to defend pirate sites or services in any way. It simply wants to protect the neutral role ISPs have had for decades.

“TekSavvy has no sympathy for copyright infringing sites. They shouldn’t do that; copyright owners should enforce their copyrights. Our opposition is about protecting the neutral role of ISPs, who provide the pipes and carry the bits,” Kaplan-Myrth notes in a series of tweets.

The blocking order applies to all large Internet providers in Canada but TekSavvy is the only one actively protesting it.

Slippery Slope

TekSavvy previously warned that the blocking order could open the floodgates to similar or more far-reaching demands. And indeed, less than a month after the appeal was finalized, rightsholders were back in court to demand further blocking measures.

This move surprised the ISP, as it hadn’t given up on the original case just yet. But it confirmed the ‘slippery slope’ fears.

“That’s the slippery slope that net neutrality advocates warn about — block a small number of sites with court oversight (GoldTV), and next leap to blocking an unlimited number of sites on demand with no oversight,” Kaplan-Myrth comments.

With its Supreme Court application TekSavvy is the only ISP to take a stand. This is in part due to conflicting interests in the telecoms industry. For example, Bell and Rogers are linked to both plaintiffs and defendants in this case.

Crucial Questions

With the application, TekSavvy asks the Supreme Court to shed its light on two crucial questions.

1. Can the Federal Court exercise its equitable jurisdiction to grant a site-blocking order in proceedings undertaken under the Copyright Act?

2. If a site-blocking order is an available remedy, what analytical framework governs its use, and how must this framework account for the impact of such an order on freedom of expression?

TekSavvy believes that site-blocking shouldn’t be used as a remedy because it isn’t specifically mentioned in the Copyright Act. But, if that is an option, clear guidelines are needed to protect freedom of expression.

Kaplan-Myrth hopes that TekSavvy will have the opportunity to expand on these issues if the Supreme Court decides to hear that case.

This is much needed, he notes, as companies such as Bell and Rogers can’t be trusted as custodians of the open Internet.

—

A copy of TekSavvy’s memorandum in support of its motion for leave to appeal and the Supreme Court is available here (pdf)