Tuesday, November 26, 2019

Teksavvy Fights Back Against GoldTV Website Blocking Order – Interveners: Start Your Engines

The Federal Court has recently issued a website blocking order that is without precedent in Canada. Similar orders in other jurisdictions have been based upon explicit legislation.  There is no explicit basis in Canada’s Copyright Act for this order. Here’s the decision: Bell Media Inc. v. GoldTV.Biz, 2019 FC 1432 (CanLII), <http://canlii.ca/t/j3frl>

Regardless of whether or not there is any reason to sympathize with GoldTV, which for whatever reason was not represented at this and the lead-up hearings, the main issue is whether the Federal Court has the necessary jurisdiction under the Copyright Act to block its websites. At stake are not only jurisdictional issues but freedom of expression, net neutrality, CRTC regulation, extra-territoriality and other rather profound matters.

Here’s the Notice of Appeal from Teksavvy, which deserves to be commended for taking on this this manifestly David v. Goliath fight. Here’s the Court’s docket. Here’s a good take on the appeal from MobileSyrup.

Needless to say, Bell and Rogers, which are both major content owners and ISP giants, are in the interesting position of effectively suing themselves and asking the Federal Court to approve their proposed remedy that would implicate other independent and much smaller ISPs such as Teksavvy and millions of Canadian internet users.

If website blocking is a needed solution to a serious problem, then one would expect explicit and very carefully constructed legislation based upon extensive review and consultation. Other common law jurisdictions where the courts have blocked websites have enacted enabling legislation that merits study. In Canada, it is clearly the role of Parliament to devise and implement copyright legislation. 

The job of our courts is to interpret and apply such legislation – not to effectively amend and extend the law to fill in perceived inadequacies.

There could and should be many potential interveners in this appeal. While leave to intervene is required in the Federal Court of Appeal and seems to be more difficult to obtain these days than in the Supreme Court of Canada, that should not stop potential interest. Interveners, start your engines.


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