By Sepal Bonni

In a May 26, 2021 judgment in Teksavvy Solutions Inc. v Bell Media Inc. (“Teksavvy”), the Federal Court of Appeal (“FCA”) upheld the Federal Court’s decision in a copyright infringement action granting a site-blocking order requiring third party Internet Service Providers (“ISPs”) to block access to certain websites operated by anonymous defendants that distribute infringing television and motion picture content. The order is unprecedented, as it is the first time a site-blocking order has been issued by the Federal Court, and therefore offers a new remedy for copyright holders to prevent access to infringing content. It is also noteworthy because the ISPs it applies to are not the defendants, but otherwise innocent third parties; the actual defendants in the underlying legal action are unidentified persons operating unauthorized internet subscription services.

Seeking the order was Bell Media Inc., Groupe TVA Inc. and Rogers Media Inc. For further discussion on the facts of the underlying legal dispute in the Federal Court decision, Bell Media Inc v GoldTV.Biz, see the January 2020 Charity & NFP Law Update. Although unopposed by most ISPs, one ISP (Teksavvy) opposed the order and brought the appeal.

The FCA considered the three main issues: (a) Whether the Federal Court had the power to grant a site-blocking order; (b) If so, the relevance of freedom of expression; and (c) Whether the order was just and equitable. In its analysis, the FCA found that site-blocking orders are within the power and jurisdiction of the Federal Court as a remedy for infringing intellectual property rights. With respect to the freedom of expression claim, the FCA accepted that customers’ freedom of expression rights might be implicated by the order; however, it found the Federal Court’s analysis adequate, and concluded that “[i]n considering the issue of freedom of expression in the context of a particular equitable remedy, it was not necessary for the Judge to engage in a detailed Charter rights analysis separate and distinct from the balance of convenience analysis that is already to be considered”. To determine if the order was just and equitable, the proper test to be applied is the RJR MacDonald test for a mandatory injunction: 1. a strong prima facie case must be shown; 2. Irreparable Harm; and 3. Balance of convenience. The Court of Appeal agreed with the motion judge that all three elements of the test were met in this case.

This case serves as a cautionary tale for charities and not-for-profits that stream copyright protected content online.

Read the June 2021 Charity & NFP Law Update