Teksavvy’s Appeal Denied: ISPs are Subject to Site-Blocking Order

In Teksavvy Solutions Inc. v Bell Media Inc. (2021 FCA 100 ), the Federal Court of Appeal dismissed Teksavvy Solutions Inc.’s (“Teksavvy ”) appeal after the Federal Court had granted an interlocutory order requiring Canadian internet service providers (“ISPs ”) to block certain websites to prevent their customers from accessing them (the “Site-Blocking Order ”). This Site-Blocking Order was seen as an unprecedented order, as it applied to ISPs who are not accused of any wrongdoing and are not defendants in the underlying Federal Court action.

Background

The underlying action was commenced by three Canadian broadcasters, Bell, Rogers, and Groupe TVA (“ broadcasters”), who understood that the unidentifiable defendants were operating an unauthorized subscription service that provided access to programming content over the internet. As this infringed the broadcasters’ copyrights, they also filed an ex parte motion for an interim injunction ordering that the copyright infringer, GoldTV Services, be immediately disabled. The interlocutory injunction was granted.

This appeal concerns the broadcasters’ motion for an interlocutory injunction to replace the interim injunction. The broadcasters cited the failure of the defendants to comply with the interim injunction and their inability to identify the defendants as a pressing need for the interlocutory injunction, which would terminate two years after its issuance.

Teksavvy opposed the motion as it argued that site-blocking should be addressed by the Canadian Radio-television and Telecommunication Commission (“ CRTC”) and not the Federal Court. Additionally, Teksavvy argued that the legal test for the issuance of an injunction was not met.

The FCA’s Decision

style="">Whether the Federal Court had Power to Grant the Site-Blocking Order

In finding that the Federal Court did hold the power to grant the Site-Blocking Order, the FCA cited sections 4 and 44 of the Federal Courts Act . Section 4 provides that the Federal Court is a court of equity and section 44 allows the Federal Court to issue an injunction where it is “just and convenient to do so”. The FCA concluded that the Federal Court’s powers to grant injunctions, subject to relevant statutory restrictions, are unlimited.

The FCA also dismissed Teksavvy’s argument that subsection 34(1) of the Copyright Act does not contemplate the specific remedy of the Site-Blocking Order. The FCA held that there is no intention within the Copyright Act to deny copyright owners the benefit of a site-blocking order.

Additionally, Teksasvvy’s argument that the CRTC had to order the Site-Blocking Order pursuant to section 36 of the Telecommunications Act was dismissed. The FCA ruled that complying with a Court-ordered injunction is not equivalent to an ISP controlling or influencing the public’s access to content. The FCA concluded that the language of the Telecommunications Act needed to be explicit if it were to displace the Federal Court’s equitable powers of injunction, which it was not.

style="">Relevance of Freedom of Expression:

style="text-decoration-line:underline;"> Teksavvy argued that the Site-Blocking Order affected the freedom of expression of both the ISPs and their customers. The FCA rejected the argument that the ISPs engage in expressive activity when they provide access to certain websites for their customers.

While the FCA was alive to the fact that customers could have an expressive interest that is implicated by the order, the FCA looked at Google Inc. v Equustek Solutions Inc., 2017 SCC 34, where the Supreme Court of Canada did not engage in a robust Charter analysis. The FCA similarly concluded that the Federal Court judge’s consideration of the freedom of expression issue was adequate.

style="">Was the Site-Blocking Order Just and Equitable style="background-color:initial;font-family:inherit;font-size:inherit;text-align:inherit;text-transform:inherit;white-space:inherit;word-spacing:normal;caret-color:auto;">:

style="background-color:initial;font-family:inherit;font-size:inherit;text-align:inherit;text-transform:inherit;white-space:inherit;word-spacing:normal;caret-color:auto;text-decoration-line:underline;">In holding that the Site-Blocking Order was just and equitable, the FCA reconsidered the issue with the higher threshold for a mandatory injunction order, as asked by R v Canadian Broadcasting Corp., 2018 SCC 5 .

First, there must be a strong prima facie case for the applicants of the mandatory injunction. While this was not explicitly considered by the Federal Court judge, the FCA was of the view that there was a strong prima facie case of copyright infringement by the defendants.

Second, the FCA was content that there would be irreparable harm if the injunction was not granted.

Third, the FCA accepted that the balance of convenience favoured granting the injunction as opposed to denying it. The FCA subscribed to the Federal Court judge’s characterization of less intrusive alternatives as “speculative”. Additionally, the FCA dismissed Teksavvy’s argument that no evidence was adduced of meaningful efforts to identify, locate, and engage with the defendants. The FCA concluded that any additional efforts to find the defendants would be fruitless.

Conclusion

The FCA held that there was no error in the Federal Court judge’s conclusion that the Federal Court had the power to grant a site-blocking Order. The FCA further held that there was no error in analysis of the applicable legal test and that the FCA should not interfere with the Federal Court judge’s decision.

Accordingly, Teksavvy’s appeal was dismissed.

Author: Nisheet Karthikeyan, 2021 Summer Student-at-law