Much like the recent Harry Potter injunction, the story of Telus blocking access to a website gets worse the more you think about it. As I noted when the story first broke on Sunday, blocking a million Internet users from a website is not only ineffective, it is dangerous as it sets a terrible precedent and may ultimately do great damage to the ISP community in Canada.
There is even more to the story, however. Telus claims that they have the right to block subscriber access to this site based on their user agreement. In other words, they are using private contracts to support the censorship of a perfectly lawful website (as far as I am aware, no court has concluded otherwise). While this may be true (though I have not examined the Telus user agreement, I’ll take them at their word), what does the law say about this?
Consider two . the Telecommunications Act and the Canadian Charter of Rights and Freedoms.
The Telecommunications Act contains at least two provisions that appear relevant. Section 27(2) provides that "No Canadian carrier shall, in relation to the provision of a telecommunications service or the charging of a rate for it, unjustly discriminate or give an undue or unreasonable preference toward any person, including itself, or subject any person to an undue or unreasonable disadvantage." It seems to me that a compelling case could be made that Telus is unjustly discriminating against this particular website, which puts the site at a disadvantage. In fact, Telus argued that this is precisely what the provision does during the CRTC’s VoIP hearings. As part of the CRTC analysis on whether it should prohibit packet preferencing, it notes that Telus argued against a prohibition, submitting to the CRTC that it "retained the subsection 27(2) prohibition on unjust discrimination." Moreover, Telus "submitted that it had committed not to do anything to deliberately degrade the service experienced by an end-user of any access-independent VoIP service."
Section 36 is even more on point. It provides that "except where the Commission approves otherwise, a Canadian carrier shall not control the content or influence the meaning or purpose of telecommunications carried by it for the public." This appears to directly address the current situation as Telus is in fact controlling the content carried by it for the public.
Once again, Telus has argued precisely this point. In its submission to the government on copyright policy in 2001, the company relied on section 36 to support the notion that there should be limited liability for ISPs since they act as intermediaries with no control or influence over the content that runs on their systems. Indeed, their submission explained that "an ISP does not initiate the transmission of information; nor does it select the recipients of the transmission, nor does it select, control, influence or modify the information contained in the transmission."
Not only does the Telus action seemingly contradict the terms and spirit of the Telecommunications Act, but it also runs contrary to the Charter of Rights and Freedoms. Although Telus is a private company, surely all companies whether private or public ought to respect the fundamental principles of the Charter. Section 2(b) of the Charter provides that everyone has "freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication." The Supreme Court of Canada ruled in Ford v. Attorney General (Quebec) that freedom of expression extends beyond the speaker to the listener, who also has an interest in freedom of expression. So too here: the website enjoys freedom of expression as do the million Telus customers who may want to read this particular expression.
This is not to say that there are not limits on freedom of expression nor on the rights of this particular website. If there is unlawful content on the site and a court orders it taken down, the host ISP must take it down. But that is not what has happened here. No court has ordered the site taken down. Rather, a single ISP, which happens to be the second largest telecommunications company in Canada, has seen fit to play judge and jury by blocking the site. That is just wrong. Telus may be involved in a contentious labour dispute, but that cannot justify this action. Unless there is an untold side to this story, the company should acknowledge its mistake and lift the blockage immediately.