Betfair & PaddyPower by Jim Makos (CC BY-ND 2.0) https://flic.kr/p/yjZYAJ

Betfair & PaddyPower by Jim Makos (CC BY-ND 2.0) https://flic.kr/p/yjZYAJ

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Quebec Law Would Violate First Rule of the Canadian Internet

If there is a first rule of the Internet in Canada, it is “thou shall not block.” Canadian Internet service providers face a wide range of policies that have implications for accessing content including net neutrality rules and the copyright notice-and-notice system. Yet in virtually all cases, blocking or removing content is simply not done (the lone exception is a limited, private sector led initiative to block child pornography images).

My weekly technology law column (Toronto Star version, homepage version) notes that unlike other countries which have dabbled in mandated takedowns or Internet filtering, Canada has largely defended an “open Internet”. Canadian law does not mandate that Internet providers take down content due to unproven allegations of copyright infringement or allow them to alter or change content. In fact, the Telecommunications Act stipulates that “a Canadian carrier shall not control the content or influence the meaning or purpose of telecommunications carried by it for the public.”

Despite the clear legal mandate to avoid blocking, earlier this month the Quebec government introduced unprecedented legislation that would require Internet providers to engage in content blocking. The new bill targets unlicensed online gambling websites as part of the government’s efforts to increase revenues from its own online gambling service, which has thus far failed to meet expectations.

The provisions are contained in an omnibus bill implementing elements of the government’s spring budget, which included a promise to establish website blocking requirements. The bill provides that “an Internet service provider may not give access to an online gambling site whose operation is not authorized under Québec law.” The government’s lottery commission will establish the list of banned websites.

According to the law, Internet providers are required to block access to the banned sites within 30 days. Failure to comply with the law could lead to initial fines of up to $100,000 with higher penalties for repeat offenders.

The Quebec initiative seems certain to end up before the courts. First, the Canadian constitution grants exclusive jurisdiction over telecommunications to the federal government. The Quebec government has unsuccessfully challenged the jurisdictional issue in the past.

While it will likely argue that the website blocking is a matter of consumer protection which falls to the provinces (the rules will be placed in the Quebec consumer protection law), its stated purpose has little to do with protecting consumers. When the measure was first announced in the budget, the government noted that its own site was not meeting revenue targets and that it believed that website blocking would generate millions in additional revenue. In fact, the government’s own working group on online gambling recommended a licensing system for all sites over blocking as the best means of protecting consumers.

If the jurisdictional issues fail to convince the courts, a free speech challenge surely will. There is little doubt that the government-mandated blocking represents a limit on the fundamental freedoms found in the Charter of Rights and Freedoms. While those rights are not absolute, Quebec will face a difficult time arguing that the blocking is a reasonable limitation given the availability of alternatives that do not limit speech and might be more effective in protecting the public.

The no blocking approach has served Canadians well, ensuring universal access to the content of their choice. As Quebec seeks to undo the first law of the Canadian Internet, it opens the door to expanded content blocking initiatives, perhaps targeting websites that do not meet language requirements or are alleged to contain infringing content. If the bill becomes law, a legal challenge that brings together Internet providers, civil liberties groups, and consumer advocates is a must.

17 Comments

  1. This will all change when the TPP passes.

    • This will have no force, and no effect and will shortly be challenged and overturned, and it applies only to Quebec. But the TPP will have a far worse effect on the first principle of the Internet, as it will not only block access to a domain, but actually remove a domain permanently, at the request of a foreign power no less, and will come with criminal penalties, and apply across Canada, and will not have any channel for redress and cannot be overturned. So why the focus on Quebec, Michael? Is this a distraction? You should be on the TPP 24×7. That’s your job.

      • Devil's Advocate says:

        “You should be on the TPP 24×7. That’s your job.”

        In the face of everything Dr. Geist has been doing and posting about, how did you even arrive at such a “job definition”??

        • As Canada Research Chair in Internet and E-Commerce Law, Professor Geist is responsible for identifying threats to the Internet. The TPP threatens to cede control of our domain, the .ca, to ICANN, to make us give up our own distinct dispute resolution policy in favour of one that is much more restrictive of speech, and to give up our distinctly Canadian right to hold a domain anonymously. Compared to that, this easily bypassed sillyness out of Quebec is nothing.

          • Devil's Advocate says:

            Since Michael’s already been detailing all you’re mentioning, I really don’t see what the problem is.

            Other things still need to be pointed out. The subject posted is certainly one of them. His “job” here is to post all such things he feels are of concern (or benefit).

          • “The (TPP) agreement even reverses the longstanding Canadian hands-off approach to the Internet. …a remarkable intervention into Internet policy.”
            Michael wrote near the end of his article on the TPP. Here he recognizes that regulating content violates the “first rule” of the Internet. (or as many say, “breaks” the net.)
            My frustration is that faced with this unprecedented and fundamental catastrophy we are discussing minutia such as whether it should have been such a secret, or whether it should have been considered ratified or just signed or just agreed to.

          • Devil's Advocate says:

            Granted, but let’s suppose the TPP doesn’t get ratified. Then, issues like the above continue to be important. We need to be prepared from all angles.

            The trouble is, we don’t know what Trudeau’s new government actually thinks about the TPP. For all we know, he’s going to toss it. (A dream, perhaps, but…)

      • Jonathan G Stewart says:

        Annie, can you provide more specific information about the TPP allowing for domain name removal? This is very troubling and i’d like to learn where is says this specifically so I can talk to my MP about this.

        • Article 18.28 is where we would agree to a US style Internet control policy, and no longer be anonymous by default. I, for one, would have to shut down my site immediately before this took effect. Others who have been upsetting the powers-that-be anonymously for years have a lot more at stake.

          Michael is right, the first rule of the Internet is to not go down the slippery slope of censorship at all, ever, for anything, except where the domain name is an exact copy of a trademark and the site clearly tries to profit from the resulting confusion. That’s already a controversial policy but at least it’s a line that can’t be crossed.

          Obviously, if the content is illegal then there have always been ways to prosecute, but censorship is neither necessary, nor desireable. It is nothing less than the relinquishing of our most valuable freedom.

          • Jonathan G Stewart says:

            Hi Annie,

            Thank you for the reference. I hadn’t looked at any TTP text till now.

            Article 18.28 1 (b) states: “online public access to a reliable and accurate database of contact information concerning domain-name registrants,”

            This contravenes current .CA policy which says that private citizens will have their name and address hidden.

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  3. Jonathan G Stewart says:

    Well put.

    I’ll also point out that for ISPs to actually implement this will be costly. Since the default position is to forward information, blocking some of it actually adds costs.

    Expect a lot of feet-dragging from the ISPs, they will not want to do this at all.

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