Federal Court of Appeal Approves Site-Blocking Order: The Consequences
Under the anonymity of the internet, the worst of humanity is revealed: piracy, defamation, hate speech, privacy violations and harassment flourish and cause immeasurable harm to their victims. The perpetrators hide as zeroes and ones, making enforcement difficult or impossible. Even if a victim could identify the source of the harmful content, the responsible intermediaries, such as web hosting services, are resistant to take down the content of their paying customers, leaving victims with lengthy legal battles as they seek justice.
In Teksavvy Solutions Inc. v. Bell Media Inc., 2021 FCA 100, the Federal Court of Appeal has endorsed a judicial innovation to take down those who abuse the internet: a site-blocking order.
A site-blocking order requires Canada's internet service providers (ISPs) to block their subscribers from accessing certain websites hosting unlawful content. The decision sets a precedent for what might become the single most effective tool for taking down harmful content from the internet.
Imagine if this order could be coupled with real-time detection of piracy, e.g. BitTorrent distribution of films. If an ISP were ordered to block BitTorrent traffic detected by a reliable source, in real-time, online piracy would grind to a halt. Pay-per-view/on demand values would skyrocket. It is within our grasp.
The Site-Blocking Order
ISPs such as Bell and Rogers connect their subscribers to the internet. When their subscriber wants to load a website, send an email or watch a video online, the ISP sends the subscriber's request to the corresponding site through the internet, and returns back to them the site's response (which, if successful, would be the desired content). Subscribers cannot connect to a site on the internet by themselves: they need their ISP to correctly route their request.
The site-blocking order granted in the Teksavvy decision is simple: it orders all named ISPs to block content from specified internet sites. The result is that no one in Canada can access the blocked content, since no ISP is permitted to complete a request to transmit content from the blocked site.
The Court held that the test for whether to grant a site-blocking order is the traditional injunction three-part test (strong prima facie case, irreparable harm and balance of convenience), ultimately assessing whether the site-blocking order is just and equitable in the circumstances. The site-blocking order explicitly allowed for amendments so that additional sites could be included in the order if there are any attempts to circumvent the order by creating new infringing sites.
While the site-blocking order related to copyright infringement, there is nothing in the Court's reasoning that would restrict it to cases of intellectual property infringement or its applicability to "websites". Nor is the order a unique solution to address a rare and special case. It is an acknowledgment by the Court that the existing methods for stopping unlawful content online, which largely involve pursuing third parties—payment services, app stores, search engines, websites hosts and domain name registrars—are ineffective. Given the prevalence of blatant unlawful content on the internet, the question is not if the Court will issue another site-blocking order, but for what.
Blocking BitTorrent Trackers
As an extension of targeting sites for copyright infringement, a site-blocking order could be used to block known BitTorrent trackers used for unauthorized distribution of copyrighted works. BitTorrent trackers are servers that assist peer-to-peer users in file sharing by tracking where files are and directing peer-to-peer user requests for those files. A site-blocking order against BitTorrent trackers would prevent any Canadian from accessing their services, which would inhibit the ability of peer-to-peer users to connect and share copyrighted content. This would not eliminate BitTorrent traffic due to the use of distributed hash tables, a decentralized means of locating files on the BitTorrent network without traditional trackers, but would be of assistance.
Blocking BitTorrent Traffic – Port Blocking Order
A further extension of a site-blocking order would be a "port-blocking order". Rather than blocking a specific site, a court could order that ISPs block ports that are being used for BitTorrent, and more specifically, unauthorized distribution of specific copyrighted content. Although some BitTorrent users may change the ports that they use, this would force BitTorrent users to use ports used for general web traffic, which would be significantly slower, thus making piracy more difficult.
In Teksavvy, the Court allowed for the site-blocking order to be modified as necessary to include additional sites if the defendants attempted to circumvent the order. Rather than specify the sites in the site-blocking order, a site-blocking order could approve a method for detecting and verifying infringement. The order could specify that an ISP would be required to block the content upon receiving notice of an infringing source that is verified by a court-approved means.
In effect, this would be a "real-time site-blocking order", allowing for a quick and efficient means for rights holders to vindicate their rights. A typical court process for obtaining a site-blocking order may take months, which creates a buffer period where infringement cannot be stopped due to the time required for the legal process. A "real-time site-blocking order" would allow rights holders to block infringing content as it is detected, stopping infringement in its tracks. This would be particularly useful for content that is time-sensitive, such as pay-per-view or on demand content, and even live sports content where the entire market for the work only exists for a few hours.
A "real-time site-blocking order" solves this problem by enabling the site-blocking order to take immediate effect.
Future of Site-Blocking Order
It would not be surprising if the TekSavvy case were to head to the Supreme Court of Canada. Assuming that the Google1 case is followed, it is likely that this order will be upheld by the Supreme Court.
The next step it to expand the doctrine in co-operation with the ISPs, who would need to interface with reliable monitoring software to block pirated content. This is technologically feasible, as shown by the site-blocking order itself.
Imagine the internet being cleansed of piracy. It is within our grasp, and the Federal Court of Canada can lead the way.
1 Google Inc. v. Equustek Solutions Inc., 2017 SCC 34, the Supreme Court of Canada granted a worldwide de-indexing order against Google, requiring Google to remove infringing websites from its search engine results worldwide.
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