On May 26, 2021, the Federal Court of Appeal released its landmark decision in Teksavvy Solutions v. Bell Media et al., upholding the first-ever site-blocking order issued by the Federal Court in a copyright case. Casey Chisick and Eric Mayzel of Cassels represented a coalition of music industry organizations—Music Canada, Music Publishers Canada, International Confederation of Music Publishers (ICMP), and the International Federation of the Phonographic Industry (IFPI)—as interveners in the appeal, which was heard in March 2021.
At issue in the appeal was whether an order requiring an Internet service provider (“ISP”) to block its subscribers’ access to websites that infringe another party’s copyright-protected materials is available in equity, under the Copyright Act, or both. While site-blocking injunctions are common in other countries—notably the UK, Australia, Mexico, India, Singapore, and many countries in the European Union—the decision under appeal was the first time that such an order had been made in a copyright case in Canada.
In a unanimous decision, the Federal Court of Appeal upheld the order of the Federal Court in all respects.
The Court confirmed that the Federal Court has the equitable discretion to issue blocking orders and that its jurisdiction to do so is reinforced by subsection 34(1) of the Copyright Act, which provides that a copyright owner is “entitled to all remedies by way of injunction, damages, accounts, delivery up and otherwise that are or may be conferred by law for the infringement of a right.” It also held that blocking orders do not conflict with the Copyright Act, including the notice-and-notice regime and other measures targeted specifically at online intermediaries, or the Telecommunications Act, including the principle of net neutrality. It also held that blocking orders do not violate the right to freedom of expression under the Charter of Rights and Freedoms, not least because ISPs are neutral intermediaries who do not engage in any expressive activity. Finally, it held that the motions judge did not err in determining that it was just and equitable to grant the requested order or by considering factors relied upon by foreign courts in arriving at that conclusion.
The submissions made by Cassels on behalf of the music industry coalition proved highly influential to the Court’s decision, particularly in relation to the interaction between the scheme of the Copyright Act and the equitable remedy at issue in the case. Among other things, Cassels argued that blocking orders are entirely consistent with the remedial provisions of the Copyright Act, that the notice-and-notice system does not affect the availability of that relief, and that blocking orders do not impair any user’s right or disturb the balance between competing policy interests in the Act. The Court agreed with each of those submissions.
This precedent-setting decision is the latest in a series of recent interventions by the Cassels copyright litigation team at all levels of court, including the Supreme Court of Canada. It represents a vital contribution to the remedial toolbox available to copyright owners in the enforcement of their rights against sites and services that make infringing content available in Canada.