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The Federal Court Establishes the test for a Site-blocking Order January 2020 Charity & NFP Law Update Sepal Bonni and Sean S. Carter In Bell Media Inc v GoldTV.Biz the Federal Court issued a ground-breaking “site-blocking” order requiring third party Internet Service Providers (“ISPs”) to block access to certain websites operated by anonymous defendants that distribute infringing television and motion picture content. The decision by the Federal Court is important for copyright owners, as it is the first time a site-blocking order has been issued by the Federal Court, and therefore offers a new remedy for copyright holders to prevent access to infringing content. The order arose after the plaintiffs, three Canadian media companies, filed a copyright infringement action against a number of anonymous developers that operate an unauthorized streaming service that allows users to access television and motion picture content online. After attempts to enforce prior injunctions against the website operators were ignored, the plaintiffs sought a site-blocking order to compel third party ISPs to block customers from accessing the infringing content. Although there is established case law to allow a remedy which compels innocent third parties to provide documents and information for the purposes of a lawsuit, this type of injunctive relief to provide an avenue of redress for those who wish to compel innocent third parties to block access to a website was not previously established in Canadian law. Although unopposed by most ISPs, one ISP (Teksavvy) opposed the order on various grounds, including arguing that the court did not have the requisite jurisdiction to issue the site-blocking order. In conducting its analysis, the court reached into both the law of the United Kingdom (“UK”) and Canada to justify the court’s jurisdiction to grant the site-blocking order, pursuant to its equitable powers to issue injunctions. Canadian law to issue injunctive relief (or the power to order a party to carry out an action or refrain from it) includes the judicial discretion to order it where it is “just and convenient,” relying on both jurisprudence from the UK, and the decision of the Supreme Court of Canada (“SCC”) in Google Inc v Equustek Solutions Inc (“Google”), discussed in the August 2017 Charity & NFP Law Update. In Google, the SCC referred to its basic injunctive relief powers when it found used this jurisdiction to order the tech giant Google (the non-party respondent) to delist from its search engine all websites associated with infringing content. What had not previously been specific relief that a party could request under injunctive relief was this “site blocking” order, and in this way, the SCC is taking established equitable principles and remedies and applying them to the modern context. The court noted that the “necessity” factor in Cartier was tied to the “irreparable harm” and therefore considered it as part of the irreparable harm analysis. In the final element of the test, the court used the remaining factors set out in Cartier as a framework in determining the “balance of convenience” in the test for injunctive relief. Using this approach, the court found there was a serious issue to be tried, that the plaintiffs would incur irreparable harm given that the defendants were unknown and there was a strong case of ongoing infringement, and that the balance of convenience favoured the plaintiff given that the need to prevent the harm outweighed any impact of the order on the ISPs or Canadian customers. Read the January 2020 Issue The CRA's Guidance on Journalism: Clarifying Tax Credits, QCJOs and RJOs
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