The case against the Bell coalition website blocking proposal has already identified at least two sources of likely expansion and over-blocking: expanding the scope of piracy sites and the over-blocking of legitimate sites that has frequently occurred with site blocking systems around the world. There is a third source worthy of examination, however, namely pressure to expand the block list to non-intellectual property issues (other posts in the series include the state of Canadian copyright, weak evidence on the state of Canadian piracy, the limited impact of piracy, and why the absence of a court order would place Canada at odds with virtually all its allies).
This is the proverbial “slippery slope” argument, but what is notable this time is that proponents of the website blocking plan cite other forms blocking to support the inclusion of IP blocking. In particular, there have been references to Project Cleanfeed Canada, a longstanding blocking program of child pornography. It should be obvious that child pornography and unauthorized streaming sites are not comparable, but that has not stopped some from implying that support for child pornography blocking undermines opposition to IP blocking. Leaving aside the obvious difference between protecting children as opposed to allegations of intellectual property infringement, the blocking of child pornography can be justified on the grounds that even accessing child pornography is a criminal offence. Not so for viewing a streaming video, whether authorized or unauthorized.
If the CRTC were to create a system for mandated website blocking of intellectual property issues, there is simply no doubt that it would quickly face requests for far more. For example, the first request for mandated website blocking involved a request in 2006 from Richard Warman to block two foreign-based hate sites. Warman provided the Commission with expert evidence that the sites violated the Criminal Code. Yet the CRTC refused to issue the order, noting that it did not think it had the legislative power under Section 36 to issue blocking orders:
The Commission considers that the Application raises an extremely serious issue and has examined the Application very carefully. The Commission notes, however, that it is a creature of statute and can only exercise the powers granted to it by Parliament. The Commission notes that section 36 of the Act would not allow it to require Canadian carriers to block the web sites; rather, under section 36 of the Act, the Commission has the power to permit Canadian carriers to control the content or influence the meaning or purpose of telecommunications it carries for the public. The scope of this power has yet to be explored.
With the floodgates opened, hate speech sites would quickly give way to online gambling and other regulated activities. The CRTC has already preliminarily ruled that blocking such sites is not permitted absent approval under very strict conditions:
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 importance of the Commission’s ruling, which importantly states that simply complying with other legal or juridical requirements (which would include the Copyright Act) does not justify blocking, will be further discussed in a future post. For the moment, it is notable that should the CRTC open the door to website blocking for intellectual property, other issues from hate speech to gambling to language requirements to other local regulatory or tax obligations will soon follow, leaving the CRTC as the arbiter of access to content online and Canada with a heavily regulated and filtered Internet.