Despite the proliferation of streaming services and improved digital offerings from traditional broadcasters, pirating content via torrents and file-sharing websites remains a significant issue in Canada.
In Bell Media Inc et al v John Doe 1 dba GoldTV.biz et al, the Federal Court granted an injunction, demanding various ISPs (Internet Service Providers) in Canada block access to pirate subscription sites that stream the content of the plaintiffs – Bell Media Inc, Group TVA Inc and Rogers Media Inc.
Gold TV is an IPTV (Internet Protocol Television) service, that allows consumers to pay a fee to stream thousands of live TV channels. The service streams Canadian broadcast channels such as CityTV (owned by Rogers Media Inc) and CTV (owned by Bell Media Inc), as well as international channels like the BBC. The broadcaster plaintiffs filed a Federal Court complaint that Gold TV violated the Copyright Act by selling subscriptions to their channels without owning the content rights.
In its decision, the Federal Court rejected a jurisdictional argument from the ISP Teksavvy. The telecom argued that the Court should refrain from exercising jurisdiction to site-block either because the Copyright Act does not address site-blocking remedies or because the matter should be dealt with directly by the Canadian Radio-television and Telecommunications Commission (CRTC).
The Court then found that the plaintiffs established a prima facie case that the defendant’s streaming service infringed their copyright, and that they will suffer irreparable harm if the injunction is not granted. Finally, after considering the factors of necessity, effectiveness, dissuasiveness, complexity and cost, barriers to legitimate use or trade, fairness, substitution, and safeguards, the Court found that the balance of convenience was in the favour of the plaintiffs.
The Federal Court gave ISPs 15 days to comply with blocking GoldTV’s services from residential customers. The plaintiff media companies must indemnify the ISPs for the reasonable marginal cost of the implementation and updating of website blocking and any reasonable liability resulting from third-party claims as a result of the ISPs’ compliance with the order.
This judgment aligns Canada with other jurisdictions such as the UK, other countries in the EU, and Australia, where courts have already issued website-blocking orders that bind ISPs. Further, it clarifies the legal framework for bringing a website-blocking order in Canada.
Since the major media companies have repeatedly failed to deal with issues of piracy for at least 15 years, it was time for the Courts to take action. Time will tell if this case serves as a landmark precedent for similar cases going forward.
Written by Aliza Zigler, JD Candidate at Osgoode Hall Law School
Sources
https://www.mccarthy.ca/en/insights/blogs/techlex/site-blocking-orders-come-canada-goldtvbiz
https://www.osler.com/en/resources/regulations/2019/federal-court-issues-landmark-websiteblocking-injunction-with-significant-implications-for-isps
https://www.osler.com/en/resources/regulations/2019/federal-court-issues-landmark-websiteblocking-injunction-with-significant-implications-for-isps