The first three posts in the case against the Bell coalition website plan focused on why it has failed to provide convincing evidence that the drastic step of site blocking is needed (existing law, weak evidence on Canadian piracy, limited negative impact on the market). The series continues by examining some of the problems with the proposal itself. One of the most obvious problems – indeed one that is fatal – is the absence of court orders for website blocking. The attempt to avoid direct court involvement in blocking decisions means the proposal suffers from an absence of full due process, raising a myriad of legal concerns. If adopted, the coalition website plan would put Canada at odds with almost every other country that has permitted blocking since the data is unequivocal: the overwhelming majority require a court order for site blocking.
The website blocking coalition has tried to downplay the absence of a court order from its proposal by suggesting that many countries have site blocking rules and that relying on alternate systems is commonplace. Its application states that at least 20 countries have site blocking, some with courts (the UK) and some without (Portugal). An examination of website blocking around the world reveals the inference that non-court ordered blocking is commonly used is misleading and inaccurate.
Just how rare is non-court ordered blocking? Working with Amira Zubairi, a University of Ottawa law student, we examined 22 countries that have or have had some form of copyright-related website blocking. Some groups say that there are 27 countries with website blocking, but we excluded five countries due to widespread censorship in their blocking systems: Saudi Arabia (which features government-backed Internet blocking), Indonesia (which has blocked 800,000 sites), Malaysia (which regularly uses the power to block legitimate sites), Turkey (which uses real-time large scale blocking of sites including Wikipedia) and South Korea (which uses censors to block access to thousands of web pages).
Our research shows that of the 22 countries that have site blocked for copyright purposes, 20 use or have used court orders (the exceptions are Portugal (which is voluntary) and Italy (which permits both)). Of course, there are many notable countries, including the United States, Japan, Switzerland, Mexico (whose Supreme Court ruled blocking is disproportional) and New Zealand, that do not have site blocking at all.
Comparative Analysis of Copyright Website Blocking Oversight
|Argentina||Court||The Argentinean National Communications Commission ordered ISPs to block access to the Pirate Bay after a Buenos Aires court issued an injunction.|
|Australia||Court||Rights holders can apply to the Federal Court for an injunction directing ISPs to block access to websites that infringe copyrighted content when: the geographical origin of the website is outside of Australia, and when the website has the primary purpose of infringing or facilitating the copyright infringement. The Australian system is under review.|
|Austria||Court||Austrian courts can issue injunctions that can be imposed on ISPs to prohibit them from allowing customers to access certain websites. In 2016, an appellate court removed a block on the Pirate Bay, however, ruling that rights holders had failed to exhaust all available remedies.|
|Belgium||Court||In 2011, a Belgian appellate court overturned a lower court ruling that found that blocking was disproportionate to allow for the blocking of the Pirate Bay.|
|Chile||Court||Chile adopted a new law in 2010 regulating ISP liability for online copyright infringement. The law requires a court order before ISPs are required to take down allegedly copyright-infringing material from websites, block access to an allegedly infringing website, disclose customer information, or terminate customers’ Internet accounts.|
|Denmark||Court||In 2015, a Danish court ordered the blocking of 12 sites. Denmark was the first country to order the blocking of the Pirate Bay.|
|Finland||Court||Section 60(c)(1) of the Finland Copyright Act allows courts to issue an injunction to discontinue and order intermediaries to discontinue the making of allegedly copyright infringing material available to the public where requirements set out in the provision are fulfilled. In 2011, a Helsinki court ordered the blocking of the Pirate Bay.|
|France||Court||Article L. 336-2 of the French Intellectual Property Code allows rights holders to seek a court order to have ISPs implement measures to stop or prevent online copyright infringement.|
|Germany||Court||In November 2015, the German Supreme Court in Karlsruhe ruled ISPs might be responsible for blocking websites offering illegal music downloads, but only if copyright holders showed they had first made reasonable attempts to stop such piracy by other means.|
|Greece||Court||Copyright holders can apply for injunctions against intermediaries who facilitate access to third party infringers (Article 64A of the Copyright Law), such as websites that are used for dissemination of music and film. In 2015, an Athens Court ruled that barring access to torrent sites is disproportionate and unconstitutional, while hindering the ISPs’ entrepreneurial freedoms.|
|Iceland||Court||In October 2014, the Reykjavík District Court ordered two ISPs (Hringdu and Vodafone) to block the Pirate Bay.|
|India||Court||India courts have issued orders for ISPs to block access to sites such as the Pirate Bay.|
|Ireland||Court||In April 2017, nine ISPs were ordered to block access to three websites. In January 2018, the Commercial Court in Dublin ordered eight sites blocked.|
|Italy||Both||Italian courts can issue blocking orders. In addition, the broadcast and telecommunications regulator Authorities for Guarantees Communication (AGCOM) has the power to issue website blocking injunctions.|
|Netherlands||Court||Under Article 26d of the Copyright Act, and Article 15e of the Neighbouring Rights Act, district courts can issue an injunction to prevent copyright and other rights’ infringements through the services of intermediaries, by ordering the intermediaries to cease services used for infringements. The Supreme Court is currently considering whether blocking is a proportionate sanction.|
|Norway||Court||In 2015, Norway Oslo District Courthouse ruled that all ISPs and access providers must block the TLDs of a number of torrent tracers like the Pirate Bay. Six different torrent trackers/pirating websites were blocked.|
|Portugal||No Court, Voluntary Proess||A voluntary process was formalized through an agreement between ISPs, rights holders, and the Ministry of Culture and the Association of Telecommunication Operators, which allows copyright holders to add new sites to a blocklist without any intervention or oversight from a court.|
|Russia||Court||Courts can order ISPs and web-hosts to permanently block websites that provide access to infringing content.|
|Singapore||Court||Section 193DDA(1) establishes under the Singaporean Act (Copyright Act) that courts can award an injunction against an ISP if the services of the ISP have been or are being used to access an online location to commit or facilitate copyright infringement, and the online location is a flagrantly infringing online location. In February 2016, Singapore’s High Court ordered local ISPs including Singtel, StarHub, and M1 to disable access to SolarMovie.ph.|
|Spain||Court||In March 2012, the Spanish government approved the Sinde Law that requires websites with pirated material to be blocked within 10 days. The legislation created a government body that has the power to force ISPs to block sites. Rights holders can report websites hosting infringing content to a government commission. A court ultimately rules on whether to block the site.|
|Sweden||Court||In March 2017, a Swedish court ordered an ISP to block file-sharing websites. On February 13, 2017, the Swedish Patent and Market Court (part of the Svea Court of Appeals), in a judgment of final instance, issued a decision requiring the ISP, B2 Bredband to block access to the file-sharing sites the Pirate Bay and Swefilm.|
|United Kingdom||Court||Copyright owners can use Section 97A of the Copyright, Designs and Patents Act 1988 to secure mandatory blocking orders against copyright infringing websites, which must be enforced by major ISPs like BT, Sky Broadband, and Virgin Media.|
The comparative data confirms that website blocking for copyright purposes is still quite rare. In those countries that have had it, the most common case involves a court action targeting the Pirate Bay. Moreover, the use of courts highlights how due process concerns are addressed. Courts in several countries, including Mexico, Austria, and Greece, have ruled that site blocking is disproportionate, noting that copyright owners may have failed to exhaust other potential remedies. In fact, just last week the Supreme Court of Canada established a higher threshold for the takedown of content online, shifting away from last year’s Google v. Equustek decision and signalling the importance of having courts consider all rights when seeking to block access to content online.
The absence of a court order means the Bell coalition website blocking proposal would place Canada offside almost all countries that permit blocking. The issue was unsurprisingly the immediate sticking point at a hearing on net neutrality at the Standing Committee on Access to Information, Privacy and Ethics this week where Liberal MP Nathaniel Erskine-Smith immediately focused on the due process concerns with the site blocking proposal. Rogers executive Pam Dinsmore responded that “there is an enormous amount of due process built into the application”, citing the piracy agency review, the CRTC approval and the possibility of an application to the Federal Court of Appeal. However, courts do not issue the block order and the potential for court involvement arises only after a site has been added to the block list and approved by the CRTC.
Further, in questioning from NDP MP Brian Masse about site blocking moments earlier, Rogers’ Dinsmore suggested that the company would only block with a court order:
I think what you’re asking is if an ISP is ordered to block a website by a court, at what stage does the ISP actually do that blocking if in fact that decision gets appealed? It’s a fair question. Presumably we would be obliged, under a blocking order, to block a given website unless there was a stay to the order that was applied for by the website provider, in which case if there was a stay of the decision, pending the appeal and the conclusion of the appeal, then we would not block that website for that time period. But unless there was a stay to the decision, we would be obliged to block, and we would never as an ISP, in this context we wouldn’t block unless there was a blocking order. We wouldn’t take it upon ourselves to make the determination on whether content is legal or illegal. We would await the court order and ergo we would follow it.
Yet the website blocking proposal that Rogers supports would remove the need to wait for a court order.
The proposal is clearly inconsistent with the vast majority of countries around the world. Notwithstanding assurances that there are many systems that do not depend on court orders, the reality is that almost everyone with a free and open Internet only engages in the possibility of website blocking with a court order. The failure to include one – indeed the very point of the Bell coalition proposal seems to be to avoid the court process – would put Canada at odds with almost all our allies and likely be subject to an immediate legal challenge given our rules on openness, net neutrality, and due process.