TekSavvy keeps fighting for you and losing

Never gets old. Go Habs Go.

Oh, hai. [/checks date on last post]. Ooh, boy. Been a while! Maybe I only blog in months starting with the letter J? Yeah, let’s go with that. ANYWAY, a huge case came out [/checks date] about a month ago. Ooh, boy. I really should be better at this blogging thing. Maybe blame COVID? Yeah, let’s go with that. Or maybe I should just stop checking dates. On to the month-old case!

So Steve and my mom may recall that back in November 2019 I wrote about a hugely important case in internet law, Bell v. GoldTV. In that post, I explained that:

Bell, Rogers and TVA are not too happy with GoldTV, who are re-broadcasting their TV programs through the internet without their permission. Which is certainly copyright infringement! So they sued. The media companies want the ISPs to block access to the GoldTV websites.

And the Court said sure! The Court found some bullshit inapplicable U.K. case that really should not have applied and went ahead and ordered a bunch of GoldTV websites to be blocked by ISPs, who were “third-party respondents” in the case. One of those third-party respondent ISPs was TekSavvy, who pleaded with the Court that this was BS and they should not be blocking websites. But the Court was not convinced. I finished up that post (the next day, man I am bad at blogging) by writing:

hello! I am sure I meant to write something like “I am guessing TekSavvy will appeal this decision”. I thought it, I swear! And I was right, because literally a couple of hours after I published this post TekSavvy filed an appeal. Thanks, TekSavvy!

On May 26, the decision in that appeal, with the case now called Teksavvy Solutions Inc. v. Bell Media Inc., was released, which is why I have come out of semi-retirement to blog again. If you read the headline of this post, you know the spoiler alert about how this appeal went for TekSavvy. Let’s dive in and recap, using the same headers the judge (The Honourable Justice George R. Locke, if you care) did:

I. Background

I already gave you the background. At least Justice Locke recognizes the importance of this case:

In addition to being unprecedented in Canada, the Order is notable because the ISPs to whom it applies are not defendants in the Action and are not accused of any wrongdoing.

II. Federal Court Order and Later Amendments

The court ordered site blocking, that’s all you need to know. The judge recaps the test the lower court used to issue the blocking, but we’ll get back to that.

III. Parties

TekSavvy was the only ISP that appealed. That’s because alot of the other ISPs were actually plaintiffs in the original case, like Bell. Confusing, I know! A bunch of groups intervened (legal-speak for “we’re not really involved here, but we have important things to say”) in the case, a few on each side.

IV. Issues

3 issues here:

  1. Whether the Federal Court had the power to grant a site-blocking order;
  2. If so, the relevance of freedom of expression; and
  3. Whether the Order was just and equitable.

V. Standard of Review

Basically what it takes to override the lower court’s order:

This Court should not interfere in such a decision absent an error on a question of law, or a palpable and overriding error on a question of fact or of mixed fact and law

Remember that.

VI. Analysis

Last section, we’re really cruising along here! I should blog more often. Oh crap, there’s almost 100 paragraphs… Anyway, we’re back to the 3 issues in order, which for fun have letters instead of numbers for some reason.

A. Whether the Federal Court had the power to grant a site-blocking order

First, TekSavvy says that for violations of the Copyright Act, like we have here, you have to look to the Copyright Act for any remedies. There are no mentions of site-blocking in the Copyright Act, so the lower Court had no power to issue such an order. Also too, the Copyright Act has the whole “Notice and Notice” regime to deal with copyright violations, so we shouldn’t have site-blocking. QED.

Justice Locke disagrees. Just because Parliament provided for one remedy, it does not mean other remedies may not be available. He even has precedent! From the Supreme Court of Canada no less:

in fact, the Supreme Court of Canada in Rogers Communications Inc. v. Voltage Pictures, LLC, 2018 SCC 38, [2018] 2 S.C.R. 643, at para. 45 (Voltage) recognized the opposite, stating that “Parliament knew that the [notice and notice] regime was only a first step in deterring online copyright infringement, and that a copyright owner who wished to sue an alleged infringer would still be required to obtain a Norwich order to identify that person.” A Norwich order, like a site-blocking order, is a mandatory interlocutory injunction that is imposed on an ISP. It also is not explicitly provided for in the Copyright Act.

Next, TekSavvy argued that because of net neutrality, as embodied in the Telecommunications Act section 36 you cannot order a “Canadian carrier” to block sites, because that is “controlling” content. The judge says nice try:

Section 36 prohibits a Canadian carrier, including an ISP, from “control[ling] the content or influenc[ing] the meaning or purpose of telecommunications carried by it for the public.” I agree with the plaintiffs’ argument that complying with a Court-ordered injunction does not amount to controlling or influencing. On the contrary, it is the ISP that is being controlled or influenced

Things are not going well for TekSavvy who are being controlled. Next, we are on to the Supreme Court’s decision in Equustek, which I am sure Steve and my mom remember. If you are not Steve or my mom, I will remind you that in Equuestek, the SCC ordered Google to globally (!) de-index websites that were selling trademark-infringing goods. The Court says Equuestek is good authority for site-blocking, but TekSavvy says Equustek is different. The Court shoots down all of TekSavvy’s arguments one by one:

TekSavvy: that was trademark, this is copyright.
Court: nah, actually, there was copyright there too.

TekSavvy: De-indexing is less intrusive than site-blocking.
Court: Maybe, but screw you, site-blocking is appropriate here.

TekSavvy: In Equustek, it took 2 years of court arguing and trying to find other ways of solving the problem before someone asked for an injunction, here it was 6 days.
Court: Meh, defendants (GoldTV) were not showing up anyway, why wait?

TekSavvy: Site-blocking is essentially a final remedy, this is only an interlocutory stage, it’s too darn much! And the dissent in Equustek agreed!
Court: Screw the dissent. It’s called a dissent for a reason.

And the Court says we’re done here, the lower court had the power to issue the order so shut up already TekSavvy. On to issue 2, er, B.

B. Freedom of Expression

Charter! Section 2b.! Freedom of expression! This should be good!

It is not good. The Court plays a nice game of gotcha with TekSavvy, saying they have no expression because they themselves say they are neutral!

I have difficulty accepting that ISPs like Teksavvy engage in any expressive activity when they provide their customers with access to certain websites. As Teksavvy itself has argued, it acts as a common carrier subject to an obligation of net neutrality. As such, it should not, and presumably does not, show any preference for one website over another based on its content. In this sense, its everyday activities in question are not expressive and therefore do not engage freedom of expression.

But what about TekSavvy’s customers whose freedoms are infringed by not being able to see the websites? Meh, the lower court really did not need to look at that:

In considering the issue of freedom of expression in the context of a particular equitable remedy, it was not necessary for the Judge to engage in a detailed Charter rights analysis separate and distinct from the balance of convenience analysis that is already to be considered. This is clear from the decision in Equustek in which the majority engaged in no such separate Charter rights analysis.

I have read this over and over and I am still not sure I get it, so I don’t expect you to either. I am not sure the analysis of Equustek at the Supreme Court really is a parallel. Here is what the SCC wrote:

This is not an order to remove speech that, on its face, engages freedom of expression values, it is an order to de-index websites that are in violation of several court orders. We have not, to date, accepted that freedom of expression requires the facilitation of the unlawful sale of goods. (para. 48)

Here, there is no “violation of several court orders”. Here, there is no “unlawful sale of goods”. Moving on…

C. Whether the Order was just and equitable

We are back to the test that the lower judge used. There are four elements, and now they are numbered at least:

(1) Strong prima facie case

There was one! The lower judge said so!

(2) Irreparable Harm

Just know Judge Locke says “he disagree(s) with Teksavvy on all of these arguments”.

(3) Balance of convenience

Here, TekSavvy argued that the lower court judge spent way too much time relying on the UK case that I said above “should not have applied”. Judge Locke disagrees. He writes that “I am not convinced that the Judge made a palpable and overriding error in his analysis”. Note he did not say “error”, but “palpable and overriding error”, so as to meet the standard for review as mentioned above. There may still have been error! It’s quality hair-splitting, but that’s what judges do.

(4) Conclusion on whether the Order was just and equitable

It was!

And the big finish:

Having found no error in the Judge’s conclusion that the Federal Court has the power to grant a site-blocking order, and having likewise found no error in his analysis of the applicable legal test, I conclude that this Court should not interfere with the Judge’s decision.

Superterriffic happy hour analysis time

Look, I think the Court was right here in the sense that they did not find enough error in the lower court’s decision to overturn it. I am still not convinced that the dismissal of the freedom of expression argument so easily was warranted. I expect that will be a big basis of TekSavvy’s argument in front of the Supreme Court, presuming they go there. They are currently kind of busy fighting for lower internet rates. But that will be the subject of another post in a month that starts with J. Oh and I will get to Bill C-10 maybe too I guess. Man I am am behind.


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