Canadaland reports today that Bell is leading a coalition that plans to file a proposal with the CRTC that would lead to the creation a mandatory website blocking system in Canada. The unprecedented proposal, which includes the creation of a new “Internet Piracy Review Agency”, envisions the creation of mandatory block lists without judicial review to be enforced by the CRTC. As a result, the companies (reportedly including Rogers and Cineplex) envision sweeping new Internet regulations with the CRTC ultimately charged with enforcing site blocking by every Internet provider in Canada. I reviewed the proposal in order to provide comments to the Canadaland.
Bell’s support for a website blocking system does not come as a surprise given that it raised the possibility at the House of Commons Standing Committee on International Trade in September and has increasingly sided with the content industry. The inclusion of Rogers on the list of supporters is consistent with recent comments at an industry conference in Ottawa despite the company earlier distancing itself in September from the Bell proposal.
As the Canadaland report notes, the Bell proposal maintains that site blocking can be established in Canada without the need for further copyright reform (notable since the government is set to launch a review of the Copyright Act in the coming weeks) by instead relying on the Telecommunications Act, which is itself slated for a review. Canada already has some of the toughest anti-piracy laws in the world with unique “enabler” provision that makes it easy for rights holder to target Canadian-based sites that are perceived to facilitate piracy. Moreover, industry data suggests that Canada has lower rates of piracy than many other countries. For example, Music Canada recently reported that Canada is well below global averages in downloading music from unauthorized sites or stream ripping from sites such as YouTube.
Yet the telecom and cable giants maintain that a new system designed to block foreign-based sites is still needed. This despite the fact that there is now the possibility of Equustek global takedown orders from the Canadian Supreme Court, which provides an obvious alternative that does not involve blocking. Perhaps most notable about the proposal is that there is no court oversight in the creation of the mandatory block list. The plan is to create a new not-for-profit organization (IRPA) similar in structure to the CCTS, which would be responsible for identifying sites to block. The organization’s board would include representatives of rights holders, broadcasters, ISPs, and consumer groups. There is no reference to independent voices or free speech or civil liberties groups. The IRPA would establish the list of sites to block to be submitted to the CRTC. The CRTC would then order all ISPs to block access to the sites under sections 24 and 24.1 of the Telecommunications Act.
The proposal claims that the blocking would only cover sites that “blatantly, overwhelmingly or structurally” engage in infringing or enabling or facilitating the infringing of copyright. Yet recent history suggests that the list will quickly grow to cover tougher judgment calls. For example, Bell has targeted TVAddons, a site that contains considerable non-infringing content. It can be expected that many other sites disliked by rights holders or broadcasters would find their way onto the block list.
Moreover, the creation of a blocking system will invariably lead to demands that it expand to other areas. Whether fake news, hate speech or unlicensed content, if blocking websites without even court oversight is viewed as fair game, the CRTC will face a steady stream of demands for more. For example, consider Bell’s potential response to the availability of streaming content from U.S. services without a Canadian licence or the reaction to the removal of simultaneous substitution and its argument that unlicensed content should be blocked. The TPP included a specific provision stopping Canada from restricting access to foreign audio-visual content precisely due to concerns that broadcasters and BDUs might want to lessen competition by blocking access to foreign services.
The good news is that legal basis for this radical proposal is on very shaky ground. The CRTC was clear in September 2016 letter arising out of the Quebec law mandating the blocking of access to unlicensed gambling sites. The CRTC stated that the law only permits blocking in “exceptional circumstances” noting that:
the Commission is of the preliminary view that the Act prohibits the blocking by Canadian carriers of access by end-users to specific websites on the Internet, whether or not this blocking is the result of an ITMP. Consequently, any such blocking is unlawful without prior Commission approval, which would only be given where it would further the telecommunications policy objectives. Accordingly, compliance with other legal or juridical requirements – whether municipal, provincial or foreign – does not in and of itself justify the blocking of specific websites by Canadian carriers, in the absence of Commission approval under the Act.
The proposal must therefore convince the CRTC that website blocking would further the telecommunications policy objectives (merely complying with copyright law or meeting broader cultural objectives would be insufficient). The proposal does a woefully poor job of making the case that mandatory website blocking would further those objectives. The best it can do is argue that piracy “threatens the social and economic fabric of Canada”, that the telecommunications system should “encourage compliance with Canadian laws” and that website blocking “will significantly contribute toward the protection of the privacy of Canadian Internet users.”
The case is very weak on all counts. The data on piracy is decidedly mixed. The carriers try to make the case that piracy is responsible for cord cutting, but the popularity of authorized services such as Netflix and the far better value associated with the services surely has much more to do with it. In fact, a recent report released by the Canada Media Fund noted the sharp decline in piracy, the fast growth of music industry, and the near-complete elimination of BitTorrent as a major source of network traffic (just under 2% of peak network traffic is BitTorrent compared to 35% for Netflix). Moreover, many studies suggest that Canada has lower rates of piracy and that the overwhelming majority of Canadians do not use tools to access unauthorized streams (a Sandvine study found that only 7% have done so). The proposal also cites a Circum study conducted for Canadian Heritage on piracy, but that study found that the majority of rights holders were not focused on the issue.
The arguments around encouraging compliance with the law is even weaker as the Commission has already stated that compliance with other legal or juridical requirements does not justify site blocking. Most head-scratching is the claim that this will protect user privacy, particularly since it comes from a company (Bell) that is the only major provider without a transparency report and it refused to comply with the Privacy Commissioner of Canada’s ruling on its privacy-invasive ad-tracking program when it was first issued. It takes a special kind of hypocrisy to argue that the way to protect user privacy is simply to block access to many Internet sites.
What the proposal does not acknowledge is that there would be obvious Charter of Rights and Freedoms concerns with a proposal that avoids judicial oversight in creating a block list, is not used by the U.S. (which has the most at stake from a content perspective and which has specifically warned against blocking in the TPP), and that it is inconsistent with rules found elsewhere that at least incorporate judicial review. The government rightly seems dismissive of the proposal in the Canadaland report but as leading Internet providers, Bell and Rogers should be ashamed for leading the charge on such a dangerous, anti-speech and anti-consumer proposal.