As the last few remaining NHL teams battle their way towards the Stanley Cup finals, the Federal Court has ordered Canadian ISPs to begin blocking NHL game streams accused of violating copyright Friday. While Canadian courts have previously recognized the availability of static website blocking (despite CIPPIC's objections), this order is the first of its kind in Canada, as we argued in our intervention. It implements a sophisticated system that relies on a private company to identify allegedly unauthorized streams using automated assessment tools and report these to Canadian ISPs for real-time blocking, and represents the next step and the never-ending expansion of remedies demanded by copyright holders in Canada.

The order adopts a number of safeguards. It will only operate during the remainder of the playoffs, where there are fewer games to monitor and less opportunities for over-blocking. The Court also ordered an independent expert to audit the website blocking initiative. The independent audit will provide critical evidence that will be critical when courts are later asked to extend this remedy. Specifically, if Rogers, Bell, and the other media companies who applied for this order wish to extend its application beyond the 2022 playoff season, the independent audit will need to establish that collateral blocking of legitimate content was minimal and that the blocking was effective in actually increasing legitimate subscriptions rather than simply driving customers to other forms of infringement or adoption of VPN services.

The Federal Court’s decision is issued against the backdrop of appellate decisions affirming the availability of website blocking orders as a remedy and the framework for assessing their adoption [para 286]. Last year, the Federal Court of Appeal affirmed an order obligating Canaidan ISPs to block access to a specific list of domains and IP addresses operated by Gold.TV to stream allegedly unauthorized content to its set-top boxes.

In applying this binding precedent to the context of real-time NHL game blocking, the Court emphasized a number of important contextual factors that render this particular remedy far more intrusive than that in Gold.TV.

The order grants converged companies such as Rogers and Bell the power to effectively decide what content is blocked with minimal prior judicial approval (paras 277 and 285). While the court approves a ‘method’ for identifying allegedly infringing content, it is Rogers, Bell and ultimately their agent—a company called Friends MTS—that uses its proprietary automated assessment tools in order to decide what meets its criteria and is blocked.

This implicates principles of Net Neutrality embodied in Canada’s Telecommunications Act that “all traffic on the Internet should be given equal treatment” (para 290), interferes with constitutionally protected right to freedom of expression by preventing the dissemination of content (para 292), and undermines Canadian copyright policy which has firmly rejected rights-holder driven take down obligations in the absence of judicial approval (paras 272-273 and 285). The court also recognized that the technique used by FMTS to identify infringing content relies heavily on novel and contested automated assessment tools and has not been subjected to external scrutiny, heightening the risk of over-blocking (paras 229, 250-253 and 258).

In issuing the remedy despite these concerns, the Court pointed to the time limited nature of the order (which will expire with the playoffs) and imposed an independent auditor that will assess the accuracy and effectiveness of the remedy (paras 317-319). This independent report will be critical when Rogers, Bell and their co-applicants inevitably seek to extend the order to the 2022-23 hockey season and presumably later to other sports as well. If the independent report indicates over-blocking, or that customers simply adopted VPN services to bypass the website blocking at issue rather than subscribing to the applicants’ services, then it will be extremely difficult for the applicants to embed this order as a standard remedy.

The Court also recognized that increasing the scope of blocking—by mandating its operation during the regular hockey season, extending it to streaming of other sports, or attempting to block access to other types of content—raises additional issues of cost and over blocking risks that will need to be assessed when future orders are sought (para 311).

Key Materials

Image source: Stanislav Lvovsky, "Censored", Flickr, September 28, 2015, CC-BY-NC-ND 2.0

Tamir Israel, Staff Lawyer, CIPPIC