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]

Freedom of Expression

Teksavvy alleged numerous freedom of expression issues, but the Court was unpersuaded by Teksavvy’s arguments. The Court stated that Teksavvy, as a neutral content carrier, does not engage in expressive activity and the judge did not have to engage in a detailed Charter analysis. [9] The Court relied on Equustek for the proposition that freedom of expression can be adequately considered as a component of an injunction’s balance of convenience analysis and stated that the lower court’s brief comments were sufficient. [10]

Justness and Equitability

The Court did not find any reviewable issue in the lower court’s injunction analysis. The Court identified that the higher threshold of “prima facie case” should have been used, but the judge’s comments and the Plaintiffs’ evidence of ongoing infringement satisfied the higher threshold. [11] Moreover, the lower court was permitted to cite the Cartier factors to guide the balance of convenience analysis because of site-blocking orders’ unprecedented status in Canadian law. [12]

Impact of the Decision

Teksavvy provides a strong remedy to deal with copyright infringement on the internet and joins the likes of Equustek and Voltage in providing new remedies for intellectual property infringement. As a dynamic order, the Plaintiffs can update the list of blocked websites relatively easily without a protracted review process to deal with website mirrors and starting from square one.

Although site-blocking is a boon for copyright owners, it remains to be seen what site-blocking means for net neutrality and the freedom of expression. The Federal Court was unreceptive to Teksavvy’s concerns about both issues and largely relied upon Equustek’s de-indexing order to justify the limited discussion of these concepts. [13] Conversely, the Standing Committee on Industry, Science, and Technology’s Statutory Review of Copyright Act identified the freedom of expression and net neutrality as important considerations in granting site-blocking orders and it is perhaps disquieting that these discussions were glossed over in a precedent-setting case. [14]

Despite the unanimity of the court in Teksavvy, this is not the last word on site-blocking. Earlier this year, the Government of Canada concluded its consultation on potential copyright reform options for online intermediaries and the government’s consultation primer identified the potential creation of statutory schemes for site-blocking and de-indexing. [15] The results of the consultation are still under review and have not been made public. However, the results will likely influence the quinquennial statutory review of the Copyright Act or potential submissions to the Supreme Court of Canada now that Teksavvy has filed its application for leave to appeal to the Supreme Court of Canada. [16]


[2] Ibid at para 3.

[3] Ibid at paras 4-5.

[4] Ibid at para 16.

[5] Ibid at paras 18-21; Federal Courts Act, R.S.C., 1985, c. F-7 s.4, 44; Copyright Act, R.S.C., 1985, c. C-42, s.34(1).

[6] Teksavvy, supra note 1 at paras 34-36; Telecommunications Act, S.C. 1993, c. 38, s.36.

[7] Teksavvy, supra note 1 at paras 29-32; Rogers Communications Inc. v. Voltage Pictures, LLC, 2018 SCC 38, 2 SCR 643; Cinar Corporation v. Robinson, 2013 SCC 73, 3 SCR 1168; CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13, 1 SCR 339.

[8] Teksavvy, supra note 1 at para 40; Google Inc. v. Equustek Solutions Inc., 2017 SCC 34, 1 SCR 824 [Equustek].

[9] Teksavvy, supra note 1 at para 53.

[10] Ibid at paras 57-59; Equustek, supra note 8 at paras 45, 49.

[11] Teksavvy, supra note 1 at paras 64-67.

[12] Ibid at paras 73-76.

[13] Ibid at paras 46-59; Bell Media Inc. v. GoldTV.Biz, 2019 FC 1432 at paras 95-97.

[15] Government of Canada, “Consultation on a Modern Copyright Framework for Online Intermediaries – Background” (17 June 2021), online: Government of Canada <https://www.ic.gc.ca/eic/site/693.nsf/eng/00192.html>; Government of Canada, “Consultation on a Modern Copyright Framework for Online Intermediaries” (14 April 2021), online: Government of Canada <https://www.ic.gc.ca/eic/site/693.nsf/eng/00191.html> at 4.4.1.

[16] Andy Kaplan-Myrth, “ICYMI, TekSavvy is seeking leave from the Supreme Court of Canada to appeal the website blocking order in the GoldTV case. Read more below, and download our application here:” (26 August 2021 at 9:42), online: <https://twitter.com/kaplanmyrth/status/1430888278304100352>.

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