Michael Geist (00412)

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Government of Canada Consultation on a Modern Copyright Framework for Online Intermediaries
Submission by Professor Michael Geist
Canada Research Chair in Internet and E-commerce Law University of Ottawa, Faculty of Law
Centre for Law, Technology and Society

A. Overview

I am a law professor at the University of Ottawa where I hold the Canada Research Chair in Internet and E-commerce Law and serve as a member of the Centre for Law, Technology and Society. I focus on the intersection between law and technology with an emphasis on digital policies. I have edited multiple texts on Canadian copyright law and appeared many times before House of Commons committees on copyright law and policy. I submit these comments in a personal capacity representing only my own views and thank Conor McCarthy, a University of Ottawa law student, for his exceptional assistance with this submission.

My submission focuses on the role of Internet intermediaries within the context of Canadian copyright law. It makes two main points.

First, website blocking is a disproportionate, ineffective and undesirable response to copyright infringement. Recent Canadian court decisions that have approved of the practice raise significant concerns for freedom of expression and net neutrality. If adopted, it must be a measure of last resort featuring robust safeguards to ensure full due process and to prevent over- blocking.

Second, lowering the knowledge standard for inputting intermediary liability is undesirable. Current safe harbour provisions help to preserve net neutrality and promote freedom of expression by eliminating any incentive for platforms to pre-emptively remove content in the interest of avoiding liability. Were reforms made such that intermediaries, such as ISPs, attract liability upon receiving notice of alleged infringement, copyright owners would be incentivized to make even weak or frivolous allegations in order to have questionable content removed.

Before addressing each of these issues in further detail, I would be remiss if I did not express my frustration and disappointment with the current government approach to copyright consultation. This marks the second consultation this year, following the consultation on copyright term extension. There are many other issues that were addressed during the statutorily-mandated Copyright Act review, including the expansion of fair dealing for innovative purposes such as text and data mining, new exceptions to the anti-circumvention provisions, and the elimination of crown copyright. The failure to prioritize those issues alongside these other consultations suggests a marked departure from the government’s prior commitment to a balanced copyright policy approach, jeopardizing the confidence of Canadians in copyright policy development.

B. Website blocking is a disproportionate, ineffective, and undesirable response to copyright infringement

The Federal Court of Appeal has recently upheld the validity of a website blocking order, without basis in a specific statutory provision.Footnote 1 In Teksavvy Solutions Inc. v. Bell Media Inc., the Federal Court of Appeal determined that the Federal Court had jurisdiction to order the blocking injunction against third-party internet service providers (ISPs) under ss 4 (establishing that the Federal Court is a court of equity) and 44 (bestowing on the Court the power to grant, inter alia, any injunction when it is “just or convenient to do so”) of the Federal Courts Act.Footnote 2 This decision has significant implications for Canadian law and points to the need for more effective safeguards should additional demands for website blocking emerge in the coming months and years.

As David Kaye, the former UN Special Rapporteur for Freedom of Expression, noted during a CRTC review of the FairPlay website blocking proposal, website blocking is “almost always a disproportionate means of [enforcing copyright law].”Footnote 3 The unfettered manner in which website blocking has entered the Canadian legal landscape is enormously problematic, raising significant concerns of abuse.

i. Website blocking will likely lead to over-blocking of legitimate websites, services, and content

The danger of over-blocking legitimate websites raises serious freedom of expression concerns, particularly since experience suggests that over-blocking is a likely outcome of blocking systems. The Council of Europe Commissioner for Human Rights issued a report in 2014 on the rule of law on the Internet in the wider digital world, noting,

blocking is inherently likely to produce unintentional false positives (blocking sites with no prohibited material) and false negatives (when sites with prohibited material slip through the filter). From the point of view of freedom of expression, the most problematic is widespread over-blocking: the blocking of access to sites that are not in any way illegal, even by the standards supposedly applied.Footnote 4

One of the best-known cases of over-blocking arose in Canada in 2005, when Telus unilaterally blocked access to a pro-union website without a court order during a labour dispute.Footnote 5 In doing so, it simultaneously blocked access to an additional 766 websites hosted on the same computer server.Footnote 6 The blocked sites included an engineering company, an Australian-based site promoting alternative medicine, a US company that recycled electronics parts, and a fundraising site for breast cancer research.

Yet the real danger is that this is not ancient history. Working with University of Ottawa law students Tanvi Medhekar and Matt Westwell in 2018, we identified numerous instances around the world in recent years where anti-piracy blocking resulted in over-blocking of legitimate sites. For example, in 2013, UK ISPs blocked access to around 200 legitimate websites including Radio Times.Footnote 7 The blocking occurred as a result of a court order targeting two file sharing websites. There have been many similar instances in the UK, including the 2012 blocking of the Promo Bay and the 2015 blocking of CloudFlare customers.Footnote 8 In fact, Ofcom, the UK regulator, anticipated the over-blocking issue in a 2010 study that noted:

We believe that IP address based site blocking is not granular and is likely to lead to over- blocking. This may undermine the confidence in any site-blocking scheme, and create significant liability risks for service providers. The over blocking property is a by-product of sites sharing IP addresses.Footnote 9

The report identified risks of over-blocking with all technical approaches to site blocking.

The UK experience has been replicated in other countries. For example, Argentina blocked access to over a million blogs after a court ordered blocking of two sites.Footnote 10 Further, when Argentina blocked access to the Pirate Bay in 2014, it simultaneously blocked access for the entire country of Paraguay, which relies on Argentina and Brazil for its Internet connectivity.Footnote 11 India blocked access to hundreds of sites, including Google Docs, after a court ordered blocking of a streaming site in 2014.Footnote 12 In 2012, as a result of an order by the Madras High Court to block copyright content, 38 Internet providers, including Airtel, blocked a range of websites including legitimate content on video sharing sites such as Vimeo.Footnote 13 Portugal inadvertently blocked a U.S. video game developer in 2016.Footnote 14 In 2017, Internet backbone provider Cogent blocked access to sites not included on a Spanish court order and Russia blocked access to 40,000 legitimate sites as it took aim at 4,000 sites on a piracy block list.Footnote 15 One year earlier, a Moscow court issued an order blocking 1,222 websites, but more than 11,000 legitimate sites were blocked in the process.Footnote 16

There are many examples of anti-piracy measures leading to over-blocking, but over-blocking can involve other content filtering. For example, the Australian Securities and Investment Commission, Australia’s financial regulator, revealed that in 2013 it blocked access to 250,000 legitimate sites after previously blocking another 1,200 websites (including the Melbourne Free University) in an attempt to block two websites it accused of fraudulent activity.Footnote 17 Further, one UK study found that one in five of the most visited sites on the Internet were being blocked by ISP filters.Footnote 18

The risks of blocking increase with certain blocking technologies. A 2010 Ofcom study identified the correlation between cheaper blocking systems and a greater likelihood of over- blocking (IP address blocking and shallow packet inspection blocking), while more targeted systems were more effective but also significantly more expensive for ISPs to implement (deep packet inspection is expensive, more targeted, and privacy invasive).Footnote 19 Notably, IP address blocking was included in the website blocking injunction recently affirmed by the Federal Court of Appeal.Footnote 20

Given the hundreds of ISPs in Canada with varying technical capabilities, court-ordered website blocking will likely lead to over-blocking of legitimate sites.

If so, website blocking will likely have a chilling effect on freedom of speech. In his 2018 intervention expressing concern with the FairPlay proposal, David Kaye wrote:

Even if a website/application is not ultimately blocked, the mere threat of blocking may have a significant and disproportionate chilling effect on its operation. Rather than risk the shutdown of their website/application, the owner/operator is more likely to err on the side of caution and take down material that may be perfectly legitimate or lawful. The threat of blocking may also incentivize owners/operators to proactively monitor their websites or applications for copyright infringement, increasing the risk of prior censorship.Footnote 21

These concerns have led some countries to reject website blocking. For example, in 2019, Switzerland reformed its copyright law, but did not include website blocking despite lobbying pressure to do so.Footnote 22 The Swiss courts have similarly rejected attempts to obtain orders requiring website blocking or to hold ISPs liable for alleged infringement on their networks.Footnote 23

Earlier this year, Germany adopted measures to prevent over-blocking associated with upload filters. This included identifying standards for content that is “presumed authorized” and should not be blocked as a default.Footnote 24

ii. Website blocking is cost-prohibitive

The costs associated with site blocking can run into the millions of dollars with significant investments in blocking technologies and services, employee time to implement blocking orders, and associated service issues. In Bell Media Inc v GoldTV.Biz, the Court ordered that the plaintiffs in that case should reimburse the relevant ISPs for “the reasonable marginal cost” of implementing the block and related tasks.Footnote 25 This aspect of the order was appropriate, given the potential costs and associated adverse impact on Canadian subscribers. However, without a statutory framework for such injunctions, it is conceivable that circumstances might arise in which a judge fails to assign costs to the copyright owner, or they fail to pay.

Website blocking orders applied broadly to the myriad ISPs in Canada would have an uneven impact: larger ISPs may find it easier to integrate blocking technologies and processes into existing systems (some already block child sexual abuse material), whereas hundreds of smaller ISPs would face significant new costs that would affect their marketplace competitiveness. In fact, larger ISPs might ultimately benefit from higher fees passed along to subscribers and reduced competition. By harming the competitiveness of many smaller providers, website blocking may jeopardize efforts to extend affordable Internet access to all Canadians.

The government has long emphasized the need to address Internet affordability concerns through greater competition. A 2018 report found that Canada “ranks among the most expensive countries in the G7 for many telecommunication services, including mobile wireless and Internet.”Footnote 26 In that same year, Prime Minister Justin Trudeau told the House of Commons that “Canadians pay enough for their Internet.”Footnote 27 The “persistent issue” of internet affordability was subsequently highlighted in Canada’s Digital Charter in Action: A Plan by Canadians, for Canadians, and enshrined in the first principle of the Digital Charter: “universal access.”Footnote 28

The experience elsewhere suggests that the costs of complying with website blocking injunctions can run into the millions of dollars. For example, larger ISPs in the UK disclosed their approximate costs in a 2014 case.Footnote 29

  • Sky Broadband spent over 100,000 pounds (costs described as “six figures”) to develop a website blocking system solely for IP right infringing website injunctions in 2011 and spent thousands more each month on monitoring costs.
  • British Telecom spent over a million pounds on a DNS web-blocking system in 2012 and required more than two months of employee time on implementation.
  • EE spent more than a million pounds on its website blocking system and over 100,000 pounds every month for operations.

These cost concerns will likely force courts or even ISPs to make tough decisions regarding the cost of compliance and individual rights and freedoms. Again, the risks of blocking increase with certain blocking technologies. As noted above, Ofcom has identified a correlation between cheaper blocking systems and a greater likelihood of over-blocking, while more targeted systems were more effective but also significantly more expensive for ISPs to implement.Footnote 30

Canadians already pay some of the highest fees for Internet and wireless access. The government has recognized universal, affordable access as a critical policy goal. While a minority of large ISPs might stand to gain from blocking with higher fees passed along to subscribers and reduced marketplace competition, smaller ISPs would face a difficult economic challenge, with mandated website blocking risking the possibility of all Canadians facing higher monthly Internet bills and jeopardizing efforts to ensure universal, affordable Internet access.

iii. Website blocking is not particularly effective

There is a growing body of research demonstrating that website blocking is not particularly effective at preventing copyright infringement due to the ease of circumvention by both users and operators. For instance, a 2017 study by INCOPRO (a vendor of site-blocking services with a vested interest in promoting their effectiveness) on the effectiveness of Australian website blocking points to reduction in piracy rates but also examined usage of a list of 250 unauthorized sites:

Usage of the top 250 sites in Australia decreased by 4% (204,843) when comparing March 2017 to October 2016. Usage of the same sites reduced by 13% for the global (excluding Australia) group and by 10.8% for the global control group.Footnote 31

The study attributes the fact that Australian declines with site blocking were lower than global averages by acknowledging that “there may have been an increase in the usage of some unblocked sites as a result of the most popular site being blocked.” INCOPRO released a new report on Australia in February 2018 that claims continued declines in piracy rates, but still contained evidence that even blocked sites show growth in Australia.Footnote 32 For instance, the report references new blocked sites such as HDMoviesWatch.net. According to SimilarWeb, Australia remained the top traffic source for the site, with its share increasing, as of 2018.Footnote 33

The likely shift of users to other sites or services unless massive blocking systems are deployed has been replicated in studies around the world. For example, a UK study by Danaher et al found little impact when the Pirate Bay was blocked with authors concluding that effectiveness depended on far broader blocking efforts.Footnote 34 A Dutch study on blocking the Pirate Bay went even further. Despite the expectation of reduced piracy rates, no such effect is found. Instead, the percentage downloading films & series, games and books from illegal sources in the preceding six months increased between May and November/December 2012, while downloading music from illegal sources remained constant. This implies that any behavioural change in response to blocking access to TPB has had no lasting net impact on the overall number of downloaders from illegal sources, as new consumers have started downloading from illegal sources and people learn to circumvent the blocking while new illegal sources may be launched, causing file sharing to increase again.Footnote 35

Many studies suffer from technical shortcomings given the inability to actually track the impact of users shifting to VPNs in order to preserve their privacy and evade blocking efforts. For example, the INCOPRO studies contain a key exclusion:

General purpose VPN and proxy services have been excluded because they allow users to access any website of their choice. As a result, it cannot be definitively concluded that they are being used to access unauthorised sites.Footnote 36

In addition to INCOPRO’s vested interest in claiming that site blocking is effective, the reliability of the data is rendered even more questionable given that it does not account for users who rely on VPNs for their Internet usage. In other words, any shift to general VPN-based access of sites is not included in the company’s data, thereby potentially significantly overestimating the impact of site blocking.

In fact, there are no shortage of studies and court rulings that conclude website blocking has little impact:

  • The UK’s Ofcom’s 2010 study on website blocking concluded “any injunction scheme operated under sections 17 and 18 of the DEA is unlikely to give rise to a sufficient level of actions to have a material impact on levels of copyright infringement.”Footnote 37
  • The UK’s 2017 online copyright infringement tracker found no change in the percentage of users accessing unauthorized content online from the prior year, despite the use of website blocking.Footnote 38
  • A similar consumer study in Australia obtained the same results with 2017 levels of infringement remaining the same from the prior year, despite the use of website blocking.Footnote 39 Indeed, a 2018 study commissioned by Innovation, Science and Economic Development Canada found that Australian respondents were still nearly 50% “more likely to have infringed at least one type of content in the past three months than consumers in Canada.”Footnote 40
  • A 2015 study by the Council of Europe states plainly that “blocking is not very effective in general.”Footnote 41
  • A study published in 2019 noted that, among thirteen countries surveyed, “consumption of music and its acquisition from illegal channels is most common in Spain,” despite that country allowing for broad injunctions against ISPs—including site blocking—to protect intellectual property since 2011.Footnote 42
  • The ineffectiveness of Pirate Bay blocking led a Dutch court to lift a court ordered block in 2014, concluding “the block is not justified and will no longer be enforced.”Footnote 43
  • A 2015 European Commission sponsored study that tracked the effect of shutting down a popular German video streaming site found only short-lived reductions in piracy levels as users gravitated to other sources.Footnote 44
  • A 2017 comment from the Council of Europe Commissioner for Human Rights noted “blocking measures are easy to bypass, even for not very technically skilled people.”Footnote 45

In sum, website blocking is not particularly effective, as operators can simply open new online locations and users can circumvent domestic blocks using VPNs and other tools. Blocking websites within Canada is, therefore, a short-term solution, at best. In order for website blocking to be truly effective in a world where Internet users have access to VPNs, blocking would need to address this issue, likely by expanding the scope of blocking to VPNs and similar tools, or by issuing global blocking orders. However, both of these approaches are dangerous and impractical.

Blocking access to VPN services would raise all of the same proportionality concerns of blocking infringing websites, while the websites themselves are more remote from the infringement itself. The application of a measure that is hardly justifiable in the one case is simply indefensible in the other. Furthermore, VPNs are used primarily for the perfectly legitimate purpose of enhancing online security.Footnote 46

With regard to global blocking orders, the jurisdiction of Canadian courts to enforce these is dubious, and attempts to do so risk burdening intermediaries with costly litigation. A similar situation arose in the aftermath of Google Inc. v. Equustek Solutions Inc., in which the Supreme Court of Canada upheld Canada’s first global de-indexing order.Footnote 47

iv. Website blocking is a disproportionate response to the problem of copyright infringement

When contrasted with the paucity of evidence of the severity of copyright infringement in Canada, as well as the alternative measures already available, the dangers of website blocking render the measure highly disproportionate to its aim. Without a compelling case that copyright infringement in Canada is particularly severe, evidence that the proposed solution will have a major impact on rates of copyright infringement, and evidence that existing tools are insufficient to address the problem, the risks and costs associated with this potential reform will outweigh any perceived benefits.

a. Copyright infringement is not particularly severe in Canada

A 2016 Circum Network study did not find much enthusiasm among Canadian stakeholders for investing in anti-piracy activities, which may help explain why existing tools are not actively used.Footnote 48 The report states that,

Canadian representatives of rights holders consulted as part of this study tended not to give online piracy fighting a high priority. While they condemn unauthorized access to intellectual property and while some rights holders indicated actively reacting, they generally considered that their scarce resources are better invested in other battles and counted on global organizations to pursue the fight.Footnote 49

In fact, there was even disagreement among those rights holders that supported government action. While some wanted law enforcement to escalate the piracy issue, others preferred to focus primarily on education efforts.

Those views are echoed in other reports. For example, a 2017 report from the Canada Media Fund noted that “some industry watchers have gone so far as to suggest that piracy has been ‘made pointless’ given the possibility of unlimited viewing in exchange for a single monthly price,” a reference to the commercial success of services such as Netflix and other online video streaming services that then generated more than $4.5 billion per year in Canada in revenue.Footnote 50

With respect to software, a 2021 report found that Canada is not among the 20 countries most actively using unauthorized software.Footnote 51

b. Canadian business is thriving

According to the International Intellectual Property Alliance, a leading voice representing rights holder groups and frequent critic of Canadian intellectual property laws, the “growth of legitimate digital distribution of creative content remains robust” in Canada.Footnote 52 The organization notes:

The total recorded music market grew 8.1% in 2019, while revenue from licensed music streaming services increased 28.7%, from US$206.9 million in 2018 to US$266.4 million in 2019. Streaming’s share of total music industry revenues continues to grow, increasing from 60% in 2018 to 69% in 2019, and digital consumption methods overall are now nearly 78% of all recorded industry revenues. The legitimate online video market is growing in Canada, with studios and producers continuing to work with multiple partners and platforms. Canadians subscribe to a wide variety of services offering movies, TV programming, or both, online, with 53% of all Canadians reporting that they subscribe to Netflix.Footnote 53

SOCAN, Canada’s largest music copyright collective, recently reported that its digital streaming revenues reached $86 million.Footnote 54 In 2013, that number was only $3.4 million.Footnote 55

The CRTC reports that the compound annual growth rate of internet-based audio and television was 26% from 2015-2019,Footnote 56 demonstrating that Canadians are willing to pay for convenient, reasonably priced services. Indeed, a 2018 Canadian study found that the top reason cited for using paid services was ease/convenience.Footnote 57 This is in line with Quintais and Poort’s conclusion in 2019 that,

online piracy is declining. The key driver for this decline is the increasing availability of affordable legal content, rather than enforcement measures. The key driver for [the global decline in piracy] is the increasing availability of affordable legal content, rather than enforcement measures. Where the legal supply of content is affordable, convenient and diverse, there is increasing consumer demand for it. Under the right conditions, consumers are willing to pay for copyright-protected content and to abandon piracy.Footnote 58

The Canadian experience conforms with this global trend. Copyright infringement is not particularly severe in Canada, and to the extent that it is declining, it is doing so because of the increasing availability of affordable, convenient alternatives to unauthorized content.

c. Canada already has effective tools to combat copyright infringement

Canada already has tools to combat copyright infringement that do not present comparable dangers to net neutrality, freedom of expression, and privacy. First, the notice-and-notice system continues to strike a successful balance between the interests of copyright owners and internet users. Early evidence showed that this system works, with 67% of notice recipients found not to repeat infringe after one notice, and 89% after receipt of a second notice.Footnote 59 More recent data shows that 38% of notice recipients reported that it “raised awareness of copyright infringement,” 27% “had a discussion with someone in their household about the alleged infringement,” and 24% “stopped downloading/streaming from illegal sites” altogether.Footnote 60 The notice-and-notice system—which Bell Canada called “effective” in its 2018 submission on copyright reformFootnote 61—is doing its job, and continues to be a model for balanced copyright enforcement.

With regards to flagrant and/or commercial infringement, the past few years have seen successful lawsuits against set-top box distributors, mod-chip sellers, and websites such as TVAddons.Footnote 62 Some of these lawsuits have resulted in massive damage awards running into the millions of dollars against sites with only partial connection to Canada.Footnote 63

Further, Canadian copyright law has also been used to shut down websites whose primary purpose is to enable infringement, with copyright owners relying on an “enabler provision” contained in the 2012 copyright reforms.Footnote 64 That provision can be used to target online sites that provide services primarily for the purpose of infringement. It states:

It is an infringement of copyright for a person, by means of the Internet or another digital network, to provide a service primarily for the purpose of enabling acts of copyright infringement if an actual infringement of copyright occurs by means of the Internet or another digital network as a result of the use of that service.Footnote 65

This powerful legal tool is made even stronger by the existence of statutory damages in Canada that can lead to millions in liability for infringement. In fact, Canada is in the minority of countries that even have statutory damages, with most requiring evidence of actual damages.Footnote 66

In sum, the notice-and-notice system continues to educate Canadians about copyright infringement and dissuade them from engaging in it. Further, the combination of specific provisions to target sites that facilitate infringement with the possibility of enormous damage awards means that Canada already has tough copyright laws in place to combat copyright infringement.

v. Website blocking is inconsistent with underlying policy objectives of this consultation

If options for reform are to be assessed according to how they might “help the [copyright] framework to better achieve its underlying policy objectives,”Footnote 67 then website blocking should be considered in very narrow circumstances, if at all. The dangers of website blocking presented above render such injunctions inconsistent with underlying policy objectives, including those explicitly stated in the consultation: “to protect and encourage the use of copyright-protected content online,” “to safeguard individual rights and freedoms in an open Internet,” and “to facilitate a flourishing digital market.”Footnote 68

a. To protect and encourage the use of copyright-protected content online

The discussion above makes clear that, as an enforcement mechanism, website blocking is both inefficient and cost-prohibitive. There is ample evidence suggesting that website blocking is not a particularly effective means of combatting copyright infringement. Website blocking is also expensive, with the potential of burdening intermediaries with costly litigation, and imposing significant costs onto copyright owners, ISPs, and/or Canadian subscribers.

b. To safeguard individual rights and freedoms in an open internet

Given that the starting principle for net neutrality is the right for users to access content and applications of their choice, blocking content is prima facie a net neutrality violation. This fact was reflected in the Standing Committee on Access to Information, Privacy and Ethics recommendation to reject the FairPlay proposal, stating that “the Committee is concerned that, in the event that the CRTC accepts FairPlay Canada’s application, net neutrality may be eroded in Canada by allowing Internet content blocking and censorship. These concepts are at odds with net neutrality, which ensures an open Internet.”Footnote 69

While the Court in Teksavvy rejected the argument that complying with court-ordered injunctions amounts to ISPs “controlling or influencing” content,Footnote 70 thereby by dodging net neutrality considerations, website blocking still risks eroding this crucial principle through second-order effects such as those alluded to by the UN Special Rapporteur for Freedom of Expression in his 2018 FairPlay intervention—namely over-blocking and the chilling effect on freedom of speech.

The likely over-blocking that will result from website blocking injunctions has clear implications for freedom of expression. Furthermore, website blocking is likely to implicate the use of VPNs, a critical tool for protecting online privacy, and some blocking technologies present heightened privacy risks. The privacy impact is particularly acute with respect to more expensive blocking technologies, while the cheaper technologies increase the risk of over-blocking.

c. To facilitate a flourishing digital market

As noted above, website blocking can cause ISPs, particularly small ISPs, to face significant new costs that would affect their marketplace competitiveness. If not properly allocated to copyright owners, the expenses associated with website blocking will likely constitute barriers to market entry, compromising robust consumer choice, and mean higher costs for subscribers. Indeed, small, independent ISPs and web giants expressed concerns about market implications— including threats to affordable internet access, job loss, and stifled innovation—in their 2018 submissions regarding the FairPlay proposal.Footnote 71

vi. If website blocking is permitted, safeguards are needed

Given the prioritization of the Charter of Rights and Freedoms, the less extreme alternative measures available, and the overall ineffectiveness of the measure, website blocking will rarely be justifiable. Should the legislature identify circumstances where website blocking is necessary and appropriate, it should craft legislative safeguards to protect against misuse and over- blocking, and ensure that blocking is only ordered as a measure of last resort.

a. Court orders should be required

First, website blocking should only be available with a court order, thereby ensuring appropriate judicial oversight. The absolute necessity of judicial oversight was stressed by the Standing Committee on Access to Information, Privacy and Ethics in its rejection of the FairPlay proposal, calling such oversight “critical.”Footnote 72 In its 2019 report on the future of Canadian copyright law, the Standing Committee on Industry, Science and Technology insisted that any website blocking include court oversight, writing, “[i]t is for the courts to adjudicate whether a given use constitutes copyright infringement and to issue orders in consequence.”Footnote 73

Indeed, of the minority of the countries that permit website blocking for the purpose of protecting copyright, the overwhelming majority do so only where it is ordered by a court.Footnote 74This international standard was expressed in a 2012 declaration from Frank LaRue, former U.N. Rapporteur on Freedom of Expression, and the IACHR-OAS Special Rapporteur on Freedom of Expression, in which they wrote,

all restrictions on freedom of expression, including those that affect speech on the Internet, should be clearly and precisely established by law, proportionate to the legitimate aims pursued, and based on a judicial determination in adversarial proceedings. In this regard, legislation regulating the Internet should not contain vague and sweeping definitions or disproportionately affect legitimate websites and services.Footnote 75

Similarly, after reviewing website blocking within the context of human rights, Stanford University researchers concluded in 2017 that,

OAS countries would likely violate their human rights obligations if they held intermediaries liable for failing to block entire sites or services in cases where no court order has been issued, as this might characterize an indirect interference on freedom of expression, prohibited by Article 13, 3 of the ACHR.Footnote 76

If the legislature were to provide a statutory basis for website blocking orders, it is critically important that such orders be available solely through the courts.

b. Copyright owners should be required to prove causation

Copyright owners should be required to prove loss according to a high standard of proof. Such a standard was discussed in the recent decision by the Court of Queen’s Bench of Alberta in Allarco Entertainment 2008 Inc v Staples Canada ULC.Footnote 77 In that case, an injunction against four major retailers of certain TV set-top boxes was rejected on numerous grounds, one of which was the plaintiff’s failure to prove harm. Lema J. wrote,

[Allarco] did not necessarily have to calculate its damages accurately, or at least completely, but it had to show it was suffering at least some damage because of the retailers’ activities… Fundamentally, Allarco had to show causation i.e. that the alleged impugned activities of the retailers—promotion and sale of set-top boxes for content piracy—have caused, and (if allowed to continue) will cause, the loss of actual potential subscribers.Footnote 78

Lema J. highlighted the plaintiff’s confessed “challenges in proving piracy and its effect on it,” and yet declined to infer from “general-phenomenon evidence about content piracy” that the plaintiff “has suffered, and will continue to suffer, from content piracy.”Footnote 79

Any legislative approach to website blocking should expressly provide that copyright owners must satisfy the court that the website to be blocked has caused the owner loss or harm before a website blocking order is issued.

c. Costs of blocking should be allocated to copyright owners

Any costs associated with website blocking, including those associated with the adoption of new technology and employee time, should be allocated to copyright owners. This safeguard would mitigate concerns regarding competition and internet affordability, among others, not least of all by dissuading frivolous or weak legal action.

d. The Australian Model

Website blocking in Canada should be treated as a last resort and should include multiple safeguards against over-blocking and harms to freedom of expression. The approach in Australia has raised concerns, but does provide further evidence of necessary safeguards. Website blocking in response to copyright infringement is provided and circumscribed by s. 155A of the Copyright Act 1968.Footnote 80 That section provides a number of safeguards to protect against dangers such as those discussed above. Under Australian law, a website blocking injunction may be granted “to disable access to an online location outside Australia that: (a) infringes, or facilitates an infringement, of the copyright; and (b) has the primary purpose or the primary effect of infringing, or facilitating an infringement, of copyright (whether or not in Australia).”Footnote 81 The three elements that must be met before such orders are granted are thus that the online location is (1) outside Australia, (2) infringing or facilitating infringement of copyright, and (3) such facilitation or infringement is the “primary purpose or primary effect” of the online location.

Furthermore, subsection 115A(5) provides an open-ended list of factors the Court may consider in determining whether to grant the injunction, including “the flagrancy of the infringement,” whether the website has been blocked by courts in other jurisdictions, and whether the injunction “is in the public interest.”Footnote 82

With regard to the first element, Nicholas J noted in Roadshow Films Pty Ltd v Telstra Corp Ltd that “[t]his limitation may reflect an assumption that other provisions of the Act provide copyright owners with adequate remedies in respect of online locations situated within Australia that have, as their primary purpose, copyright infringement or the facilitation of copyright infringement.”Footnote 83 Indeed, such a safeguard would be useful in the Canadian context as a means of preventing application of the remedy (which we have seen to be likely, if not certain, to infringe Canadians’ freedom of expression) in circumstances where it is not the minimally impairing, yet still effective, option.

Moreover, scholars Cheryl Foong and Joanne Gray have argued against the primary effect test, observing that it “makes the threshold for an injunction entirely contingent on the website’s usage by third parties, irrespective of the conduct of the website proprietor.”Footnote 84 They suggest, instead, that primary purpose is sufficient on its own, and that primary effect would be better considered as an element in determining whether copyright infringement is the site’s primary purpose.Footnote 85 As Foong and Gray argue, by lowering the threshold to include primary effect, the law now arguably encompasses “[n]on-infringing online locations [which], when combined with the use of tools such as [VPNs], could lead to what is effectively copyright infringement in Australia” (e.g. using a VPN to watch Netflix US) or ripping services, which have clear non-infringing applications.Footnote 86 They further cite the history of YouTube, which, in its early days, was host to “widespread copyright infringement.”Footnote 87 Under a primary effects threshold, the authors argue, similar developing technologies or services could be blocked, “and the Australian public may be denied access to the benefits of innovation and access to information.”Footnote 88

Foong and Gray further recommend making “public interest” a key factor that must be considered in determining whether or not to grant a blocking injunction, not merely another of many factors that “may” be considered.Footnote 89 Expressly designating the public interest as the paramount consideration would conform to the Canadian focus on individual rights and freedoms, enshrined in the Charter.

Finally, a suite of 2018 amendments to the Copyright Act 1968 included the addition of a provision requiring intermediaries to block access to locations that the intermediary and the copyright owner have agreed, in writing, “have started to provide access to the online location after the injunction is made.”Footnote 90 In other words, the injunction can later be adapted to encompass other locations without direct judicial oversight. While this provision has the benefit of addressing the problem of circumvention by website operators (also known as “the whack-a- mole problem”Footnote 91), it also opens the door to misuse and other dangers, such as over-blocking. As discussed above, court oversight is critical to ensure that website blocking remains proportionate and appropriately circumscribed, and a similarly adaptive regime is therefore undesirable in Canada.

At the very least, a legislative framework that includes adaptive blocking injunctions should also “mandate reporting on what websites have been blocked by ISPs or filtered out by search engines, with reporting obligations collectively applied to online service providers and the relevant rightsholder.”Footnote 92 As Foong and Gray observe, this approach would “achieve a level of transparency necessary to hold rightsholders and online service providers accountable for conduct that could impinge on [individual freedoms] or inhibit technological innovation.”Footnote 93

C. Lowering the knowledge standard for inputting intermediary liability is undesirable

Current safe harbour provisions help to preserve net neutrality by eliminating any incentive for platforms to pre-emptively remove content in the interest of avoiding liability. Lowering the knowledge standard to the mere receipt of allegations of infringement risks compromising net neutrality and freedom of expression by introducing such an incentive.

i. Likely to encourage pre-emptive takedowns

Were reforms made such that intermediaries, such as ISPs, attract liability upon receiving notice of alleged infringement, copyright owners would be incentivized to make even weak or frivolous allegations in order to have questionable content removed. Whether the particular use actually constituted infringement or not, the intermediary in question might well feel compelled to remove the content out of precaution. By exposing intermediaries to liability upon mere receipt of such an allegation, the government would be creating an incentive for intermediaries to remove or control content, raising obvious freedom of expression concerns and compromising net neutrality.

Indeed, such reform is inconsistent with the underlying policy objective of safeguarding individual rights and freedoms in an open internet. The removal of content by intermediaries is a prima facie infringement of net neutrality, and the proposed reform would encourage intermediaries to do so or risk incurring liability. Furthermore, a statutory provision that incentivizes the pre-emptive removal of legitimate speech violates Canadians’ freedom of expression.

ii. Likely to impose costs on intermediaries and subscribers

The incentive of copyright owners or others to make allegations would be strengthened if, as now, there were no fee for sending infringement notices. With the possibility of having content they do not like removed, and nothing to lose by trying, copyright owners or bad actors would have no reason not to flood intermediaries with infringement notices (i.e. unproven allegations).

Unfortunately, this flood of notices would have an asymmetrical economic impact. If allegations could be sent to intermediaries without a significant fee, copyright owners would incur trivial or no costs for the chance to have undesirable content removed extra-judicially.

This is not the case for intermediaries, however. Upon receipt of an allegation, an intermediary would be faced with three choices: (1) ignore it and expose itself to liability, (2) accept the allegation as accurate and remove the content, potentially censoring legitimate speech and certainly compromising net neutrality, or (3) investigate the allegation to determine whether or not to act on it. The first two options are undesirable for reasons already discussed. The third is the most desirable, but it is not free.

If not allocated to the sender, the costs of processing allegations (not least of which will be employee time) will likely be passed onto subscribers, raising, once again, concerns about affordability.

This consequence makes the proposed reform inconsistent with at least one underlying policy objective: facilitating “a flourishing digital market.” If intermediaries choose the responsible route of investigating allegations before ignoring or complying with them, they face additional costs, above and beyond those associated with merely processing the allegations. If not allocated to copyright owners, these costs will likely be passed onto subscribers, compromising efforts to improve internet affordability. In addition, these costs may disproportionately affect smaller intermediaries, constituting a barrier to entry and reducing consumer choice.

iii. Evidence of prior abuse

The assertion that copyright owners would likely send weak, frivolous, inaccurate or fraudulent allegations is not purely speculative—indeed, such abuse is very likely if the history of the notice-and-notice system is any indication. Within hours of that system first taking effect, anti- piracy companies began sending notices that included settlement demands backed by threats of litigation.Footnote 94 The government advised the public that there was no requirement to settle, but the absence of regulations opened the door to widespread misuse.

The early days of that system also saw fraudulent notices, sent by parties impersonating copyright holders.Footnote 95 There is no reason to assume that such abuse will not occur again, were bad actors given the incentive to do so. One can easily conceive of situations where bad actors use fraudulent notices to prompt the takedown of legitimate voices in order to silence alternative or unpopular speech.

While rampant abuse of the notice-and-notice system was largely rectified by 2018 amendments, a reform lowering the knowledge standard for inputting intermediary liability would once again expose Canadians to similar threats.