Had the CRTC addressed the substantive questions, the case would have presented an enormously difficult choice. There is little doubt that the content in question is illegal and that Warman faces a serious threat. By directly targeting Warman, the foreign sites have arguably brought themselves within Canada's jurisdiction. Further, by merely asking the CRTC to issue a voluntary order, Warman avoided state-sanctioned censorship and placed the issue in the hands of ISPs.
Despite the good intentions behind the application, however, there remains some cause for concern.
Second, blocking technologies are notoriously overbroad. For example, when Telus last year blocked Voices for Change, a website supportive of one of its labour unions, a university study found that hundreds of additional websites were inadvertently blocked in the process. Although blocking technology may have improved by targeting domain names rather than IP addresses, there is a real risk of blocking legitimate content.
Third, blocking foreign content establishes a dangerous precedent that can easily be misused. While child pornography can and should be blocked since merely viewing such content is illegal, the prospect of extending blocking to hate speech, defamation, or even copyright infringement complicates the analysis considerably.
If there is an effort to develop an appropriate policy framework, it will need to include complaints mechanisms, a presumption that the content is lawful and must be disproved by a high standard of evidence, an opportunity to challenge blocking requests, appropriate judicial oversight, and full transparency about blocking activities. The job is not the CRTC's alone – law enforcement and the judiciary must surely be involved in the process of determining what may constitute unlawful content and the remedies that follow – but the regulator can assist in the process.