The Telus Blockade and the Law

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.


  1. In fact, Telus argued that this is precisely what the provision does during the CRTC’s VoIP hearings.

    No — the Telus argument, and the provision you cite, pertain to competing firms and not downstream content.

    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.

    No — I don’t have the right to walk into a convenience store and distribute the flyer of my choice. The test is rather more onerous (Ramsden, and it is unlikely that a non-common-carrier (ie Internet provider) without market power (ie Shaw) meets it.

    The Telecom Act s. 36 argument may be useable, though. One outta three ain’t bad…

  2. Time to switch to Shaw, I think…
    Regardless of the legality of blocking the sites, I don’t want an ISP that resorts to censorship to promote its own agenda. Bye-bye, Telus.

  3. Gordie Forrest says:

    This is about an ongoing labour dispute betweena very militant union and Telus. I would be very carefull taking sides here as it is nigh on impossible to get the true facts from either party.
    It does appear this time, that the union must be dragged, kicking and screaming, into the 21st Century.

  4. 1 outta 3 is still 1 valid condemnation
    1 outta 3 is still 1 valid condemnation of Telus’ behavior, especially when it’s based on Charter rights.

  5. The possibility that what Telus is doing may technically be legal does not make it OK in my mind. The fact is that they are purposely censoring specific websites for their own gain.

    I have had issues with the business practices of Telus for some time, but this is where I have to draw the line. I will be cancelling my Telus phone and internet accounts today.

  6. Tris Hussey says:

    What can we do?

    Besides blog the snot out of this (Boing Boing and Now Public are covering this), what else can we do?

  7. Excellent artcile. Thanks for your perspective. As someone who visits the union website I was shocked at the company’s allegations re: illegal activities. What nonsense. The truth is that the forum is just another basic discussion forum for union members and supporters (although managers post there as well – usually in an attempt to provoke other contributors). This is typical Telus behaviour. Arrogant – almighty and abominable.

  8. Gordon in Victora says:

    Strange that these postings, even in boingboing,
    do not seem to mention that Telus staff have been
    attacking Telus customers in order to harm Telus.

    I do not think that the reporting I am reading is
    at all balanced. It is illegal to assault another
    person, but it is not assault if one is defending
    one’s self. Telus did not take such physical actions
    until striking employees started cutting phone lines
    to some communities, attacking Telus customers.

    As a satisfied Telus customer, I think all striking
    workers should be fired, as they are all paid too
    much, compared to the average Canadian, and
    remaining jobs should be contracted out.

    Why should Telus meet the demands of those
    who commit terrorist acts against Telus customers
    in order to recieve higher than sensible wages?

    Now, let’s see some balance in reporting on that war.

  9. censoredandmad says:

    If you bothered to read further into the news you would realize that people steal cable all the time because it is worth $$$ , it is not union membersd cutting lines
    do some reading bfore posting such tripe, terrorist acts??? and NOONE has assualted anyone, you are a plain and simple liar.

  10. teluscensors says:

    Here is a torrent of telus managment drunk and making sexually degrading comments towards the fairer sex

  11. I find it very interesting that you are trying to argue that Telus is “unjustly discriminating” against this website.

    I am curious, do you believe that posting proprietary information (which is no doubt restricted under a non disclosure agreement), posting on ways to disrupt Telus’ networks, and posting the personal information, as well as the photos of workers who chose to cross in an attempt at intimidating workers into staying on the picket line is fair game then?

    Or did you decide that the reason behind why Telus blocked the site isnt important?

  12. Telus IS unjustly discriminating agianst
    I find it very interesting that you think Telus has the right to just censor a website to millions of viewers that they claim has illegal material, when according to them, they should have stable legal grounds to get the site shut down legally.

    Telus is taking the law into its own hands, this is the point the article is making. If the website was as dangerous as Telus claims, then getting a court injunction would not be difficult.

    That’s why we have courts, so that when people have stable legal grounds, they can have the right thing done…

    Since reading about this issue, I will be considering a switch to Shaw but I don’t know if I can afford it, as I don’t have cable tv. However I have done this before. I have stopped going to most edmonton clubs haivng found out that they break privacy laws with the use of the Barlink/barwatch computer system.

  13. Jay Currie says:
    I am disgusted with Telus’s conduct and have no doubt that it will backfire.

    That said, and not to be picky but are Telus’s operations as an ISP covered by the Telecommunications Act? I admit I have not looked at this legally in years, but my recollection of the Act is that it covers the telephone operations of Telus.

    Do the internet operations fall under th ambit of the Act? If they do then Telus is not an ISP like the others as it would be regulated where the others are not. However, the CRTC may have exercised its s. 34 Forebearance powers with respect to Telus service as an ISP as part of the Commission’s decision not to regulate the internet generally. In which case an argument from the Telecommunications Act would not be available.


  14. I think you’re forgetting…
    It’s called the telecommunication act and not the telephone act for a reason, it covers the telephone and other methods of communication. At the time the law was made, the telephone was the main instrument for telecommunications.

  15. if you had bothered…
    if you had bothered to read the telecommunications act you would have read this defenition: “telecommunications” means the emission, transmission or reception of intelligence by any wire, cable, radio, optical or other electromagnetic system, or by any similar technical system;”

  16. Geist’s legal args are weak, but policy
    Most of the legal analysis doesn’t stand up. Like it or not, Canadians jumped all over the CRTC back in 1999 to prevent it from having any jurisdiction over Internet content. Now we’re reaping the benefits:

    – the Charter just doesn’t apply here, because this is private property which we convinced the CRTC not to regulate.

    – the Telecom Act’s undue preference provision doesn’t apply, because TELUS isn’t preventing any carrier from competing with it for telecom services. That’s how this (content) is different from the discussion of undue preference in the VoIP decision (packet preferencing crippling Voice-over-Internet competitors).

    – the Telecom Act’s Canadian carrier provision doesn’t apply, because Internet is not a “Canadian carrier” service — again linked to the New media decision.

    That said, the policy argument is sound. The CRTC needs to get involved with this area to prevent censorship by big companies. The New Media decision is due to be revisited anyway.

  17. telecom act arguments are not quite on..
    In granting forbearance of ILEC retail internet services, the CRTC retained authority under section 24 to “impose conditions on the provision of retail end-user Internet services that may be necessary in the future.” The CRTC also kept its “powers under subsections 27(2), 27(3) in part, and 27(4) to provide an additional safeguard against any undue preference.” (see, for example, Decision 2000-150)

    As for section 36, Decision 2000-150 also references Decision 99-4 which granted ILECs “approval under section 36 of the Act to involvement by any Canadian carrier in the content of that carrier’s own Internet Service.”

    I figure this means a 27(2) argument is available, but a section 36 argument is not.

  18. Michael Geist says:

    Michael Geist Responds…
    Many thanks for the great comments and feedback on this posting. I’ll have more to say on this issue in a column out next week, but I did want to provide several responses to some of the comments that readers have posted.

    First, I recognized (but perhaps should have made clearer) that the Charter does not apply to a private organization. It was for that reason that I spoke of the company “respecting” the Charter. It is not legally obligated to do so, but I would argue that all organizations ought to take fundamental legal rights and freedoms into account in the manner in which they operate.

    Second, several issues have been raised with respect to the Telecommunications Act. I think the most important of these involves CRTC forebearance on retail end-user Internet services. This is an excellent point. However, I think the case is still arguable since the Telus blockage targets more than just its own retail end-user Internet market. As several readers have pointed out, Telus has blocked this website at the Internet backbone level. In the process, they are discriminating against specific content in their provision of Internet services at the wholesale, ISP to ISP market. Whether the CRTC forebearance extends to that market raises an interesting question.

    Third, I would agree that Section 27(2) is designed to address third party telecommunications services. I think there is a potential argument, however, that would allow a website such as the one in question to argue that it is providing services that fall under the telecommunications services definition since the site features a range of services (chat forums, etc.).

    Finally, I’m not convinced that the new media decision is particularly relevant here. It is relevant to the website in terms of its regulation, but less so for Telus as the provider.

  19. That’s why I don’t use Telus as my ISP…

  20. Inge Coulter says:

    Hoping to get away from Telus by changing server? Try it. If you change your long distance provider away from Telus and use other servers then Telus will target your line 24 hours around the clock with the automated rotating Telus computer which intercepts the modems. Upon your computer redialing your phone service will be terminated. My servers frequently had their dial-in numbers blocked by Telus usually around 4 am in the morning. And, we know about the power surges which were sent through the phone lines after the labour dispute last year.

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  23. says:
    Strange situation. For what reason make blockade? I don’t understand