Orders requiring ISPs to block websites that make available copyright infringing materials are commonly made in many countries around the world. The courts' equitable jurisdiction to make such orders in Canada was recently approved by the Federal Court of Appeal in the Teksavvy Solutions Inc. v. Bell Media Inc. 2021 FCA 100 (GoldTV), (leave to appeal to the Supreme Court dismissed). In the recent ruling, Rogers Media Inc et al v John Doe 1 et al 2022 FC 775, the Federal Court issued a dynamic blocking order to require Canada's leading ISPs to block access to streaming servers that provide unauthorized streams of NHL games in real time.

Dynamic blocking orders permit blocked online locations to be updated without requiring additional court orders to address circumvention actions by pirate operators. These latter orders have been used in some jurisdictions because, among other things, users are increasingly turning to unauthorized IPTV set-top boxes, apps and services to access infringing streams, rather than just freely accessible "linking" websites running on computers

Dynamic blocking orders are commonly made in other countries such as the UK, Ireland, and elsewhere in the EU. However, the dynamic blocking order made in Rogers Media is the first time such an order was made in Canada.

The reasons for decision of Justice Pentney for granting the order were extensive (113 pages). Like the reasons for decision rendered by the Court of Appeal and the Federal Court in GoldTV, the court did not accept many of the objections to the proposed blocking order made by CIPPIC and some ISPs that had objected to it.

Infringement by unauthorized streaming servers

The court had little difficulty concluding that there was a very strong prima facie case that the unauthorized streaming of NHL games infringed copyright holders' right to communicate the games to the public.

As noted above, the Plaintiffs hold the exclusive right to communicate to the public all live NHL games through TV broadcast and online streaming. Pursuant to section 3 of the Copyright Act, the Plaintiffs have the sole right to broadcast this content, or to authorize its communication to the public. Under section 27(1) of the Copyright Act, any person who communicates this content to the public without the owners' consent is infringing the Plaintiff's copyright.

The evidence shows that the unnamed Defendants are responsible for the unauthorized communication to the public in Canada of the Plaintiffs' broadcasts of live NHL games. I agree with the Plaintiffs that the Defendants' actions do not fall within the statutory exception limiting the liability of those who only provide the "means" of telecommunication, set out in subsection 2.4(1) of the Copyright Act. The evidence shows that the Defendants are not merely the conduit of the transmission of the copyright material; rather, they have pirated it and arranged for members of the public in Canada to gain access to it through the infrastructure that the Defendants have set up. This involves deliberate and elaborate efforts - involving substantial investments - to capture and stream the Plaintiffs' copyright material.

Irreparable harm

Justice Penteny had little difficulty concluding that the media plaintiffs satisfied the "irreparable harm" criteria needed to obtain the interlocutory mandatory order requested. He found that the evidence "shows that copyright piracy results in harms to the Canadian broadcasting system, and similar harms have been recognized in other jurisdictions".

Balance of Convenience

A significant portion of the decision was taken up with the judge's reasons for holding that the balance of convenience between the media plaintiffs, the ISPs, and the public favored granting the dynamic blocking order. In considering this issue, the Court, followed the analysis in the GoldTV decision. It also considered each of the "Cartier factors" (summarized in one of the leading UK cases) used in the UK for assessing whether a blocking order should be granted.

Some of the highlights of the reasons set out below.

Complexity and costs

Some of the ISP respondents were concerned that they did not have the technical capacity to comply with a court order. However, having "reviewed the evidence at length" Justice Pentney was "satisfied that the Third Party Respondents each have the capacity to engage in the type of dynamic site blocking that is sought. He also stated that "While I accept that this will impose new obligations on each ISP, and certain additional risks, I am satisfied that the ISPs have the technical capability to engage in dynamic IP address site blocking."

Effectiveness and dissuasiveness

The court concluded that based on the evidence and the experience in other countries, that the dynamic blocking order "will be effective in making the infringing activities more difficult and it will have the effect of discouraging users from accessing the infringing services".

In the United Kingdom, a series of cases have accepted evidence of the effectiveness of this technique, finding that "past experience suggests that blocking access causes a material reduction in the number of UK users who access blocked websites" (The Football Association Premier League Ltd v British Telecommunications Plc, [2017] EWHC 480 [Premier League] at para 49; see also: Union des Associations Européens de Football v Eircom Ltd TéA Eir & Ors, [2020] IEHC 488 at para 11 and the cases cited therein).

This conclusion is also bolstered by a recent study of the European Union Intellectual Property Office, which found that courts in the UK and in some other countries have concluded that such orders are effective in reducing traffic to unauthorized streaming sites (EUIPO, Study on Dynamic Blocking Injunctions in the European Union (2021) at 59).

I am persuaded that the Order is likely to have at least some dissuasive effect and that substitution will not undermine its effectiveness. As has been found in similar cases elsewhere (cited above) and as Justice Gleeson concluded in GoldTV FC at paragraph 84, blocking access to unauthorized content is likely to have an impact on the individuals affected, and they face costs and a degree of complexity in seeking to evade the effects of a blocking order. This may dissuade them from continuing, and it may persuade others who may be tempted that it is not worth the effort.

Furthermore, I find that substitution will not be so easily done as to defeat the purpose of the Order or to render it disproportional to the effort required by the Third Party Respondents.

Freedom of expression

The court found, following the decisions in GoldTV and the Supreme Court of Canada in Equustek (which granted a worldwide deindexing order against the search engine Google), that blocking streams of infringing copyright material would not violate freedom of expression rights including the freedom of users to access infringing content.

...the impact of any order on freedom of expression is an important factor. However, it is of limited significance to the outcome here, given the restraints in the Order to be granted and the fact that the focus of the activity is on unlawful streaming of broadcasts which have been found to constitute a strong prima facie case of copyright infringement. The concerns expressed by CIPPIC about the lack of ongoing judicial oversight are valid, but will be addressed in other ways, as explained below.

Considering the impact of the Order that will be granted on the interests of the Plaintiffs and the Third Party Respondents, as well as its impact on the rights and interests of the viewing public in Canada, I am satisfied that this factor is not a basis to reject the Order sought. The rights and interests of all concerned can, in the very particular circumstances now facing the Court, be balanced and protected in a manner that meets the requirements of copyright enforcement, without unduly interfering with the ISPs operations or interests, or significantly interfering with the freedom of expression interests of the affected viewers.

In addition, I am also not persuaded by the Plaintiffs' argument that the Order does not engage the very strong protection for freedom of expression enshrined in the Charter. As with GoldTV FC, I find that freedom of expression - particularly the access to information aspect of the freedom - is an important consideration in assessing whether to grant or deny the remedy requested, but in the end it does not weigh in favour of not denying the relief.

First, the Plaintiffs have established a strong prima facie case that the content to be blocked constitutes an ongoing infringement of their copyright. This is not simply an assertion of the Plaintiffs; I have already found that the activity of streaming this content is prima facie unlawful. As stated in Google, at paragraph 49: "[e]ven if it could be said that the injunction engages freedom of expression issues, this is far outweighed by the need to prevent the irreparable harm that would result from Google's facilitating Datalink's breach of court orders."

Second, the nature, scope and duration of the blocking is limited and subject to a specific and detailed Order. The Order seeks to limit its impact on the interests of any member of the viewing public who wants to access legitimate content, and extends only to those who seek access to unauthorized content that is subject to the specific terms of the blocking Order. I am satisfied that the risks of over-blocking are minimal.

Third, the Order will require independent expert monitoring and verification of the steps taken under it. Although that is a post-facto measure (i.e. it will not prevent any infringement of freedom of expression), it will serve to encourage all parties to pay scrupulous attention to the very specific details set out in the Order, and it will ensure a degree of transparency for the parties, the Court and the wider public.

On balance, I am satisfied that any potential infringement of freedom of expression guarantees under the Charter will be limited, proportionate and justified

Net Neutrality

The court also rejected the argument advanced by CIPPIC (which was also advanced and rejected in GoldTV) that making the blocking order would violate the net neutrality principle.

On the issue of net neutrality, I am not persuaded by the Plaintiffs' assertion that the principle is not affected by the Order. Any requirement that ISPs consciously interrupt or interfere with a subscriber's access to their services prima facie implicates the principle of net neutrality, which generally means, "that all traffic on the Internet should be given equal treatment by ISPs. In other words, there should be no manipulation, preference, or discrimination, either through technical or economic means" (CRTC Telecom Regulatory Policy 2017-104 at para 10). The fact that the content is said to be illegal does not prevent the principle from being affected, but neither is it entirely irrelevant that the content to be blocked here has been found to constitute a blatant and ongoing infringement of the Plaintiffs' copyright in live NHL broadcasts.

Each situation should be assessed on its own merits, and in this case I am persuaded that net neutrality should not prevent the limited blocking to be required by the Order here. I find that the safeguards put in place by the Order, including the specific requirements imposed on the Plaintiffs regarding the selection of the services to be identified for blocking and the extent to which this will result in under-blocking rather than over-blocking, will sufficiently protect net neutrality.

Practical concerns of ISPs

Several ISPs had raised practical concerns related to implementing the dynamic blocking order. The court took many of the concerns into account in drafting the very extensive order that included a requirement for an independent agent to identify the IP addresses and times for the blocking be effected. The court also required the appointment of an independent expert to conduct a post implementation review to examine, among other things, the expert's assessment of the effectiveness of the order and complaints received related to the implementation of the order.

Concluding comments

The Rogers Media case is an important incremental development in the law. Canadian media companies have been successful in defending their rights in cases against sellers of pre-configured "set top" boxes (aka Kodi boxes) and add-ons that make available infringing IPTV streaming services. See, example, Bell Canada v. 1326030 Ontario Inc. (iTVBox.net), 2016 FC 612, aff'd 2017 FCA 55, Bell Canada v. Vincent Wesley dba MtlFreeTV.com, 2018 FC 66, Bell Canada v Adam Lackman dba TVADDONS.AG 2018 FCA 42, Bell Canada v Red Rhino Entertainment Inc., 2019 FC 1460, Warner Bros. Entertainment Inc. v. White (Beast IPTV), 2021 FC 53, Bell Canada v. L3D Distributing Inc. (INL3D), 2021 FC 832, Bell Canada v. Nie, 2022 CanLII 7552.

More recently, Canadian courts starting with Equustek and then GoldTV recognized the necessity for equitable orders against "innocent" search engines and ISPs to inhibit access to infringing online sites and servers. Rogers Media now recognizes that the courts' equitable jurisdiction can extend to making dynamic blocking orders.

The Rogers Media dynamic blocking order ruling brings Canada closer to having the effective and dissuasive remedies against online infringement that have been available for decades across the Atlantic. See, for example, the following cases in which dynamic blocking orders have been made Football Association Premier League Ltd (FAPL) v British Sky Broadcasting Ltd, [2013] EWHC 2058 (Ch); FAPL. v British Telecommunications plc, [2017] EWHC 480 (Ch.); FAPL v British Telecommunications plc, [2017] EWHC 1877 (Ch); FAPL v British Telecommunications Plc & Ors, [2018] EWHC 1828 (Ch) (July 18, 2018); FAPL. v. Get AS, Case No. 18-039103TVI-OTIR/02, Norway, Oslo District Court [Get AS]; FAPL. v. M1 Ltd, Case No. HC/OS 211/2020, H.C. of Singapore; Signbet PTE Ltd v M1 Limited, Case No. HC/OS 1152/2018, H.C. of Singapore (Nov. 7, 2018); La Liga Nacional de Futbol Professional v Telenor A/S, Denmark, Court of Frederiksberg (April 15, 2019); FAPL v M1 Limited & Ors, Case No. HC-OS 331-2019, H.C. of Singapore (April 9, 2019); .Telefonica Audiovisual Digital, S.L.U.V. Vodafone Espana S.A.U., Commercial Court Madrid (Feb. 11, 2020).

The court in Rogers Media also rejected many of the objections raised by anti-copyright advocates such as CIPPIC that carefully tailored blocking orders violate rights of freedom of expression or the principle of net neutrality. For an overview of the reasons justifying blocking orders and a rebuttal to some objections to them, see Barry Sookman, Fact checking Michael Geist's criticisms of the FairPlay site blocking proposal and Barry Sookman, Why the CRTC should endorse FairPlay's website-blocking plan: a reply to Michael Geist.

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