On May 26, 2021, the Federal Court of Appeal issued its decision in Teksavvy Solutions Inc v Bell Media Inc et al, 2021 FCA 100, upholding the Federal Court’s order in Bell Media Inc. et al v Goldtv.biz et al., 2019 FC 1432 (the “Order”), which enjoined Canada’s main Internet Service Providers to block their subscribers’ access to certain piracy websites. This decision is another major victory in the fight against online piracy across Canada.
The Respondents were successfully represented by François Guay, Guillaume Lavoie Ste-Marie and Olivier Jean-Lévesque of Smart & Biggar’s Montreal office.
As previously reported, in July 2019, Bell Media, Groupe TVA. and Rogers Media (the “Plaintiffs”) filed an action for copyright infringement against the anonymous operators behind two highly popular unauthorized subscription services operating under the name GoldTV (the “GoldTV Services”). The GoldTV Services allowed users to access a vast amount of pirated live and on-demand television content owned by the Plaintiffs and other third parties, without authorization. Despite the issuance of interim and interlocutory injunctions against their operators in July and August 2019, some of the GoldTV Services remained online, leaving the Plaintiffs without an apparent recourse.
Facing the untenable prospect of their content remaining continuously infringed, the Plaintiffs sought and obtained an Order compelling Canada’s major ISPs to block their users from accessing the websites associated with the GoldTV Services. This remedy, known a site-blocking order, was the first of its kind in Canada, but has been available to copyright owners in other jurisdictions such as the United Kingdom, France and Australia.
Teksavvy Solutions (“Teksavvy”), one of the ISPs targeted by the Order, appealed the Federal Court’s decision to the Federal Court of Appeal on various grounds, including that the Federal Court does not have jurisdiction to grant site-blocking orders, that the CRTC has exclusive jurisdiction over this type of remedy, that the Order limits freedom of expression and that the Order was not just and equitable in the circumstances.
The Federal Court of Appeal dismissed the appeal on all grounds in a unanimous decision.
In doing so, it rejected Teksavvy’s argument to the effect that the remedies listed in the Copyright Act are exhaustive and pointed to the existence of other discretionary legal and equitable remedies that are not specifically mentioned in the Act to support its jurisdiction in this case, such as Mareva and Norwich orders, punitive damages, and declaratory judgment.
Regarding the jurisdiction of the CRTC, the Court concluded that while section 36 of the Telecommunications Act prohibits ISPs from “controlling or influencing” the content they carry without CRTC approval, site-blocking Orders do not entail ISPs controlling content, but rather an Order controlling ISPs. The Court also rejected an “awkward two-step process” proposed by the Appellant, which would entail a Court first issuing a site-blocking order, then turning to the CRTC for implementation approval.
On the question of freedom of expression, the Court did not accept the Appellant’s position to the effect that ISPs engage in expressive activity when they provide their customers with access to certain websites. Such a position, the Court found, conflicted with the Appellant’s own argument that they were mere carriers subject to net neutrality.
The Court did agree that ISP subscribers could have an expressive interest in the Internet content they access. However, it held that that it was not necessary to engage in a detailed Charter analysis and that freedom of expression could be considered at the balance of convenience prong of the injunction test, notably finding comfort in a similar analysis recently performed by the Supreme Court in Google Inc v Equustek Solutions Inc (2017 SCC 34). In this case, the GoldTV Services’ ongoing copyright infringement and the Order’s adequate safeguards to prevent over-blocking justified the remedy issued by the Federal Court.
Finally, with respect to the three-part test for mandatory interlocutory injunctions (strong prima facie case, irreparable harm and balance of convenience), the Federal Court of Appeal found that the Plaintiffs’ case significantly exceeded the strong prima facie case threshold, noting that the Defendants undoubtedly have and continued to infringe the Plaintiffs’ copyright. As it relates to irreparable harm and weighing the balance of convenience, the Court held that it was entirely appropriate for the motion judge to seek guidance from UK jurisprudence, as he faced a motion for an Order that was unprecedented in Canada and common in that jurisdiction. Ultimately, the Court held that the motion judge made no reversible error in his definition of the test to be met or his appreciation of the evidence.
The dismissal of this appeal, which recognizes the irreparable harm that piracy causes to the creative sector, is another important decision for copyright holders. Remedies for IP infringement continuously evolve both in statutes and before the Court, and this decision once again confirms that the Federal Courts are prepared to issue appropriate remedies to protect Canadian creators.