The Federal Court of Appeal, in Teksavvy Solutions Inc. v. Bell Media Inc., 2021 FCA 100 (“Teksavvy”), affirmed an order compelling non-party Internet service providers (ISPs) to block access to websites of the pirated television streaming service GoldTV. This decision confirms that blocking orders are available in Canada as a remedy to limit access to sites that provide copyright infringing content.
GoldTV is a subscription service that provides unauthorized streaming of television programming. In a landmark decision, in Bell Media Inc. et al. v. GoldTV.Biz, 2019 FC 1432 (“Bell Media”), the Federal Court of Canada granted an order for numerous third-party ISPs to block access to GoldTV’s sites. The ISPs were not accused of any wrongdoing. The decision builds off of Google Inc. v. Equustek Solutions Inc., 2017 SCC 34 (“Equustek”), in which the Supreme Court of Canada held that the Federal Court had jurisdiction to grant a world-wide de-indexing order against Google, a non-party accused of no wrongdoing in that action, in relation to ongoing trademark infringement and breach of confidence by the defendant.
The motion court decision was previously summarized on the Brand Protection Blog here.
The site-blocking order was appealed by Teksavvy, one of the ISPs to whom the order applied. The appeal raised the issues of whether the Federal Court had the power to grant the site-blocking order and if so, what the relevance of freedom of expression is and whether the particular order made in this case was just and equitable.
The Court of Appeal upheld that the Federal Court has the power to issue site-blocking orders under Sections 4 and 44 of the Federal Courts Act. Section 4 provides that the Federal Court is a court of equity, and section 44 permits the Federal Court to issue injunctions “in all cases in which it appears to the court to be just or convenient to do so.” The Court rejected that site-blocking orders were contrary to the intention of the Copyright Act or in violation of the principle of net neutrality as contemplated by section 36 of the Telecommunication Act.
While Teksavvy asserted that the Order infringed on the Charter right of freedom of expression, this argument was rejected. The Court made clear that in the context of issuing a site-blocking order, it is sufficient for a judge to consider any potential effects on freedom of expression within the analysis as to whether the balance of convenience favours the granting of the order.
Finally, the Court found no error in the Federal Court’s reasoning that it was just and equitable to order the injunction on the circumstances before it. The Court rejected Teksavvy’s argument that the motion judge erred or fettered his discretion in relying on factors from a series of decisions in the U.K. case: Cartier International AG v. British Sky Broadcasting Ltd.
The Teksavvy decision confirms that the Federal Court has the power to issue site-blocking orders, similar to what is available in the UK, EU, and elsewhere. The availability of site-blocking orders has broad implications for the protection of intellectual property (IP) against copyright infringing websites. This decision would likely apply to blocking orders sought against sites that provide other pirated copyrighted works including music, books, video games, and sports programming. The orders may also be applicable in relation to sites engaged in other forms of IP infringement, such as those that facilitate the sale of counterfeit goods.
*Special thanks to Kevin Bushell (articled student) in our Vancouver office for his assistance in preparing this article.