In the first order of its kind in Canada, the Federal Court has issued an injunction directing named internet service providers (ISPs) to prevent users from accessing certain websites operated by anonymous defendants that are alleged to infringe Canadian copyrights over a wide range of audiovisual works and broadcasts. This landmark decision offers a new remedy for copyright holders and media producers to prevent access from Canada to infringing content over the internet, and it provides a framework for ISPs to implement such a remedy while also benefiting from important safeguards. Although the Federal Court’s order was shaped by the evidence submitted by the parties, its terms are likely to set the precedent for an increasing number of similar cases going forward. The Federal Court’s order is now under appeal, however.
The injunction arose in Bell Media Inc. et al v. John Doe 1 dba GoldTV.biz et al., 2019 FC 1432 (Bell Media), in which three Canadian media companies alleged that a number of defendants operated an unauthorized subscription and streaming service that allowed users to access television programs online, in violation of the Copyright Act. After multiple failed attempts to unmask the unknown website operators, the media companies brought a motion for an interlocutory injunction against a number of third-party ISPs to require them to take steps to restrict, if not eliminate entirely, access to the infringing websites. A number of third-party ISPs did not oppose the proposed order after negotiating terms relating to process, costs and indemnification. However, three ISPs opposed the motion. In particular, Teksavvy Solutions Inc. objected on several principled grounds, including that the Federal Court either had no jurisdiction or should refrain from issuing such blocking injunctions. Distributel Communications Limited and Cogeco Connexion Inc. did not oppose the motion per se, but took issue with the form of the order requested, which they argued was too onerous and intrusive on the business of the ISPs as neutral third parties.
After a two-day hearing in September 2019, the Federal Court directed all parties to attempt to bridge their differences about the form of a potential order. When these negotiations failed to resolve all disagreements, the Federal Court ruled on the interlocutory injunction motion.