A New Tool in the Copyright Toolkit: The Site-Blocking Order

  • September 28, 2021
  • Christopher Tsuji

Teksavvy Solutions v Bell Inc. provides a novel remedy for copyright owners to deal with copyright infringement: a site-blocking order. [1] In TekSavvy, the Federal Court of Appeal unanimously upheld the Federal Court’s unprecedented interlocutory order that required several Canadian Internet Service Providers (ISPs) to restrict access to several websites because of copyright infringement.

Background

In July 2019, Bell Media, Groupe TVA, and Rogers Media (“Plaintiffs”) sought an injunction to block the operation of goldtv.biz and goldtv.ca (“Gold TV”), a streaming service that provided content that infringed the Plaintiffs’ rights. [2] Gold TV did not respond and the Plaintiffs subsequently successfully sought an injunction for the ISPs to block access to the specified websites. [3] Teksavvy, one of the affected ISPs, appealed the Federal Court’s decision on three principal issues: 1) the Federal Court’s jurisdiction to grant a site-blocking order, 2) the relevance of freedom of expression, and 3) the justness and equitability of the order. [4]

Federal Court’s Jurisdiction to Grant a Site-Blocking Order

The Federal Court of Appeal (the “Court”) confirmed that the Federal Court has the power to grant a site-blocking order under section 4 and 44 of the Federal Courts Act and section 34(1) of the Copyright Act, which grant the Federal Court broad and equitable powers and the ability to provide injunctive relief for copyright infringement. [5] The Court also stated that section 36 of the Telecommunications Act (the net neutrality provision) does not prevent the Federal Court from issuing a site-blocking order. The Court rationalized that ISPs are the ones controlled by the court order and do not independently control the content; thus, there is no violation of net neutrality. [6] Moreover, the Court emphasized that the remedies listed in the Copyright Act are not exhaustive and pointed to Norwich orders, punitive damages, and declaratory judgements as valid non-prescribed copyright remedies. [7] Similarly, the Court cited Equustek for the proposition that mandatory injunctions can be issued against a third party not accused of wrongdoing. [8]