Of all the claims that accompanied the launch of the Bell coalition’s website blocking plan – piracy rates (weak evidence) and claims of harm (unsupported by the data), inferences that the absence of a court order is commonplace (it isn’t), that the blocking will be strictly limited (unlikely), and that site blocking is effective (considerable data says otherwise) – the most audacious is surely the repeated assurances that site blocking does not raise net neutrality issues. Given that the starting principle for net neutrality is the right for users to access content and applications of their choice, blocking content is prima facie a net neutrality violation.
The fact that Bell argues that its site blocking plan does not implicate net neutrality should not come as a surprise. Bell, more than any other Canadian company, has spent more than a decade arguing that practically nothing is covered by net neutrality:
- In 2007, it began throttling Internet traffic without telling anyone.
- In 2009, it argued against net neutrality rules at the CRTC, even rejecting some transparency obligations of its traffic management practices.
- In 2010, it was found to have throttled download speeds. It promised to fix the issue only after claiming that it did not violate net neutrality rules.
- In 2013, it faced a net neutrality complaint over its MobileTV service. It argued the service did not violate net neutrality rules. When the CRTC ruled it did, it took the case to the Federal Court of Appeal. It lost.
- In 2016, it argued that differential pricing plans did not violate net neutrality rules. The CRTC ruled that they did.
- Two weeks ago, it argued against enshrining specific net neutrality rules into Canadian law at a House of Commons committee, repeating tired warnings about a “risk to future innovation.”
In other words, whether at the CRTC, in the courts, and at Parliament, Bell has consistently argued for the narrowest possible approach to net neutrality and its attempt to paint website blocking as outside net neutrality is only the latest iteration of its longstanding opposition.
In this case, the Bell coalition argues that net neutrality is limited to “lawful content” and that its plan therefore falls outside the rules. In its application, however, it does not cite the Canadian rules. That too is unsurprising, since Canada’s net neutrality framework was never limited in application to content that is “lawful.” The 2009 CRTC net neutrality decision says the following about blocking:
The Commission notes that the majority of parties are in agreement that actions by ISPs that result in outright blocking of access to content would be prohibited under section 36 unless prior approval was obtained from the Commission. The Commission finds that where an ITMP would lead to blocking the delivery of content to an end-user, it cannot be implemented without prior Commission approval. Approval under section 36 would only be granted if it would further the telecommunications policy objectives set out in section 7 of the Act. Interpreted in light of these policy objectives, ITMPs that result in blocking Internet traffic would only be approved in exceptional circumstances, as they involve denying access to telecommunications services.
In other words, blocking may only be permitted under exceptional circumstances where it furthers the telecommunications policy objectives (an earlier post noted the CRTC’s rejection of blocking for hate speech and preliminary view of no blocking of online gambling). There is no reference to lawful content. In fact, the word “lawful” does not appear in the decision. Some have seized on a reference to “illicit materials” in the CRTC decision, but that clearly refers to network threats, not the content of the materials.
The exclusion of any reference to “lawful content” in the 2009 net neutrality framework is not a coincidence. Much of the hearing was devoted to an examination of Internet providers throttling access to some of the same sites and services that could now find themselves on the block list.
Since Canadian law does not help its argument, the Bell coalition instead it relies the U.S. Open Internet Order and European law. Other proponents cite an old 2006 Canadian report that referenced copyright, yet that report pre-dates the CRTC net neutrality rules, which did not adopt that language. The U.S. law does indeed limit its applicability to “lawful content”, but that rule has now been suspended and Bell (along with the other Canadian providers) have loudly proclaimed that Canadian rules are different from those in the U.S. Earlier this month, Bell told the House of Commons committee:
It is important to appreciate that regardless to the changes to the net neutrality policies in the U.S., Canadians’ access to and use of the Internet will remain governed by our domestic net neutrality rules, which are developed and overseen by the CRTC.
Net neutrality blocking rules in other countries is often very limited. For example, TRAI, India’s telecom regulator, released its net neutrality recommendations in November 2017. Despite pressure from copyright owners for a copyright blocking exception, TRAI established a limited exception for blocking unlawful content with no exception for piracy:
As regards the blocking of unlawful content, it was highlighted by stakeholders during the consultation process that any such blocking requests must be initiated only in accordance with the process established by law. Section 69A of the Information Technology Act, 2000 empowers the Central or a State Government to order the blocking of public access to information in a computer resource if it is necessary or expedient on any of the listed grounds. These grounds are: interest of sovereignty and integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence relating to above. The rules to be followed in this regard have also been specified under the IT Act. The constitutionality of this provision was upheld by the Hon’ble Supreme Court in Shreya Singhal vs. Union of India on the grounds that it is a narrowly drawn provision with several safeguards.
TRAI continues by noting that there is an exemption for an “order of a court or direction issued by the Government, in accordance with law, or action taken in pursuance of any international treaty must be regarded as a valid exemption.” This is far more restrictive than a system without a court order or specific law providing for blocking.
In Columbia, the net neutrality law is even more explicit, adopting a no blocking rule:
The providers of telecommunications networks and services that provide the Internet access service may not block, interfere, discriminate, or restrict the user’s right to use, send, receive or offer any content, application or service through the Internet, without the express consent of the user.
Despite claims that Europe’s net neutrality rules support copyright-related blocking, the rules are designed to ensure full due process before permitting blocking. The EU’s 2015 regulation states at Article 3(3)(a):
Providers of internet access services shall not engage in traffic management measures going beyond those set out in the second subparagraph, and in particular shall not block, slow down, alter, restrict, interfere with, degrade or discriminate between specific content, applications or services, or specific categories thereof, except as necessary, and only for as long as necessary, in order to:
(a) comply with Union legislative acts, or national legislation that complies with Union law, to which the provider of internet access services is subject, or with measures that comply with Union law giving effect to such Union legislative acts or national legislation, including with orders by courts or public authorities vested with relevant powers;
In assessing how to interpret the provision, BEREC, the Body of European Regulators for Electronic Communications, commented in 2016 that “these issues would require an approach based on legislation, rather than being voluntary or self-regulatory.” The emphasis on court orders or legislation – not voluntary or self-regulatory models – points to the need for due process that involves court or legislators.
Where does that leave the Bell coalition website blocking plan? After inapplicable U.S. laws or outdated reports are excluded, it becomes apparent that the Canadian net neutrality rules that have been strongly endorsed by the government do not include a specific limitation for “lawful content.” Moreover, global approaches point to the need for court oversight or specific legislative frameworks, neither of which are part of the Bell coalition plan. In other words, website blocking without the full due process that comes from court orders – as contemplated by the Bell coalition – violate Canadian net neutrality rules.