Canada: Dynamic Blocking Orders Available In Canada: Rogers Media

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.

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.

...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

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.