In November last year, the Federal Court of Canada, in Bell Media v GoldTV, issued an injunction against the majority of the ISPs in Canada to block Goldtv.ca and Goldtv.Biz. An injunction made against a party is an equitable remedy, you may think of it as an order, that prevents that party from doing a certain act.
Due to the increase in cases, where a party asks the court to order a website to be blocked, the term “site-blocking” orders in Canada and “website-blocking” orders in the United Kingdome have been coined.
In Bell Media v GoldTV, all the third party respondents, the ISPs, either consented to the order or took no position, except Teksavvy Solutions Inc. who opposed the motion by arguing that, inter alia, the Federal Court did not have jurisdiction or should decline to exercise jurisdiction. Those who operated Goldtv.ca and Goldtv.biz could not be identified.
The Federal Court emphasized the novelty of site-blocking cases in Canada by saying that “ …An order of this nature has not previously [been] issued in Canada but has in other jurisdictions, including the United Kingdom…” then referred to the English case of Cartier v British Sky Broadcasting.
This position is problematic. Firstly, Cartier v British Sky Broadcasting was decided based on European Directives and laws, which are different from Canadian laws. Secondly, there have been site-blocking decisions in Canada, for example, Google v Equustek. In 2017, the Supreme Court of Canada, in the famous case of Google v Equustek, ordered Google to deindex a website globally, because the website was infringing on Equustek Inc.’s trademark rights.
The issues, in this case, were as follows:
- Issue of jurisdiction;
- The test to be applied;
- Whether the plaintiffs have met the test;
- Terms of the order.
In this blog, we will focus on the issue of jurisdiction and Teksavvy’s position.
1. Issue of Jurisdiction
The first issue was whether the Federal Court had jurisdiction and if so, should the Federal Court decline to exercise its jurisdiction.
The Federal Court referred to ss 4 and 44 of the Federal Courts Act, RSC 1985, c F-7 which basically states that the Federal Court is a court of equity. Given that an injunction is an equitable remedy, therefore the Federal Court has jurisdiction.
Further to answer the question of whether issuing an injunction against someone who is not a party to the case, in this case, the ISPs who are the third-party respondents, the Federal Court referred to Google v Equustek and stated: “…Justice Abella, writing for the majority, first noted that injunctions are equitable remedies and that the powers of a court with equitable jurisdiction are, subject to any relevant statutory limitation, unlimited, not restricted to any area of substantive law, and enforceable through court’s contempt power.”
Amongst all the third-party respondents, which included big communication companies such as Bell, Fido, Rogers, and Telus, only Teksavvy, one of the smaller companies, fought against the injunction.
Teksavvy essentially argued that the case at hand is a site-clocking matter which should be decided by the Canada Radio-Television and Telecommunications Commission (“CRTC”) under the Telecommunications Act. By referring to the Telecommunications Act and the CRTC’s past decisions, Teksavvy argued that site-blocking should only be ordered in “exceptional circumstances.” It also provided supplementary written submissions on s.36 of the Telecommunications Act, which states: “Except where the Commission approves otherwise, a Canadian carrier shall not control the content or influence the meaning or purpose of telecommunications carried by it for the public.”
Section 36 of the Telecommunications Act safeguards our right to information, the free flow of information on the Internet, and prevents the ISPs from becoming “censors in chief” or the “Big Brothers.” Preventing ISPs or telecommunication companies from becoming such tools is one of the dominant arguments against the Right to be Forgotten.
Teksavvy, further, argued that the remedies for infringing copyright are exhaustively set out in the Copyright Act and that site-blocking is not one of the enumerated remedies. It also argued that the idea of site-blocking as a remedy was considered by in 2012, when the parliament was considering amendments to the Copyright Act, however, such remedy was never included in the Copyright Act. Unfortunately for Teksavvy, s.34(1) of the Copyright Act entitled the copyright holder to “all remedies by way of injunction”.
The Federal Court was not receptive to Teksavvy’s arguments and went ahead to make the injunction order, however with some changes.
Stay tuned for the next blog post…