BCCLA raises free expression concerns in website-blocking case

THE British Columbia Civil Liberties Association (BCCLA) filed submissions on Monday, August 3, asking the Federal Court of Appeal to preserve Canadians’ rights to freedom of expression if the Court makes orders that require internet service providers (ISPs) to block access to internet sites or services.

In Teksavvy Solutions Inc. v Bell Media Inc., the Federal Court of Appeal will decide whether Canadian courts have the power to make orders to force ISPs to block access to internet sites or services. The case involves streaming television services that infringe the copyrights of major Canadian media companies. The Federal Court ordered Canadian ISPs to block access to the infringing sites. One of the ISPs appealed, saying the Court does not have the authority to issue a site blocking order. If the Court does make a site blocking order to prevent copyright infringement, it could open the door to site blocking for other purposes as well.

The BCCLA is intervening in this case. It will tell the Court that site blocking violates the Charter rights of the website operators, the ISPs’ customers, and the Canadian public, and that site blocking orders should only be issued when the harm of not blocking the site outweighs the harm of blocking it.

If the Court does issue site blocking orders, the BCCLA says the Court should minimize the infringement of Charter rights by making the order as narrow as possible. This is especially important because the rules the Court uses to block copyright infringement could be used in other cases as well.

Megan Tweedie, Senior Counsel at the BCCLA, said: “Blocking a website is an extreme step that always violates Canadians’ rights to freedom of expression. It is a powerful tool that can do a lot of damage. The ruling the Court makes here will decide how site blocking is used in the future. Site blocking orders could be used to shut down journalists, artists, scientists, or politicians. If we are going to have site blocking orders, we need strict limits on how they are used.”

The BCCLA will argue that the Court should consider the reason the site blocking order is being requested, the nature of the expression being blocked, and whether any other steps could limit the harms of a blocking order.

The BCCLA is represented by Gib van Ert of Gib van Ert Law. The BCCLA has filed its written submissions, and the Federal Court of Appeal will hear arguments in the near future on a date to be determined.