This series has devoted the past several weeks to making the case that the Bell coalition website blocking plan is a disproportionate, ineffective response to piracy that is out-of-step with global standards, will raise consumer Internet costs, result in over-blocking legitimate content, and that is offside Canadian norms on net neutrality, privacy and human rights. Yet even if the CRTC were to still think this terrible idea is worth supporting, it would fall outside its stated rules on approving website blocking. The Commission has made it clear that it will only permit blocking in “exceptional circumstances” and only where doing so would further the objectives found in the Telecommunications Act.
As discussed last month, the 2009 CRTC net neutrality decision says the following about website 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.
The CRTC view was reiterated in its September 2016 letter arising out of the Quebec law mandating the blocking of access to unlicensed gambling sites:
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 Bell website blocking proposal must therefore do more than simply raise concerns with respect to copyright law or cultural policies found in the Broadcasting Act objectives. Rather, it must convince the CRTC that website blocking would further the telecommunications policy objectives (in addition to demonstrating it is consistent with the CRTC Policy Direction, which it is not). The Telecommunications Act enumerates nine objectives:
(a) to facilitate the orderly development throughout Canada of a telecommunications system that serves to safeguard, enrich and strengthen the social and economic fabric of Canada and its regions;
(b) to render reliable and affordable telecommunications services of high quality accessible to Canadians in both urban and rural areas in all regions of Canada;
(c) to enhance the efficiency and competitiveness, at the national and international levels, of Canadian telecommunications;
(d) to promote the ownership and control of Canadian carriers by Canadians;
(e) to promote the use of Canadian transmission facilities for telecommunications within Canada and between Canada and points outside Canada;
(f) to foster increased reliance on market forces for the provision of telecommunications services and to ensure that regulation, where required, is efficient and effective;
(g) to stimulate research and development in Canada in the field of telecommunications and to encourage innovation in the provision of telecommunications services;
(h) to respond to the economic and social requirements of users of telecommunications services; and
(i) to contribute to the protection of the privacy of persons.
The Bell coalition application cites three objectives in support: that piracy “threatens the social and economic fabric of Canada” (subsection a), that the telecommunications system should “encourage compliance with Canadian laws” (subsection h), and that website blocking “will significantly contribute toward the protection of the privacy of Canadian Internet users” (subsection i).
The Bell coalition case is exceptionally weak on all counts. As discussed in great detail earlier in the series, there is no compelling evidence that piracy on telecommunications networks is threatening the social and economic fabric of Canada. Indeed, claims that Canada is a piracy haven are not supported by the data. If anything, the data supports the view that Canadians are rapidly shifting away from unauthorized sites toward legal alternatives as better, more convenient choices come into the market.
Moreover, the Canadian data on the digital economy and Canadian creative sector show a thriving industry. The total value of the Canadian film and television sector exceeded $8 billion last year, over than a billion more than has been recorded over the past decade. In fact, last year everything increased: Canadian television, Canadian feature film, foreign location and service production, and broadcaster in-house production. The Canadian data on digital business models also points to a steady stream of success stories that refute claims that it is difficult if not impossible to create successful business models in Canada. Online video services, which the Bell coalition suggests are harmed by streaming sites, are experiencing rapidly expanding revenues, now generating more than $1 billion per year. In fact, two Canadian online video services – CraveTV and Club illico – are estimated to have earned $373 million last year, up from just $13 million four years earlier.
The argument on 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. The coalition couches this argument within the objective of responding “to the economic and social requirements of users of telecommunications services”, but even the application doesn’t seem to buy its own argument. It states:
Clearly the Canadian telecommunications system should encourage compliance with Canada’s laws, including laws with respect to the intellectual property communicated by telecommunications. Those laws exist to foster social and economic objectives important to Canadian society, including encouraging the creation and dissemination of creative works through the creation of a rights system (under the Copyright Act and related statutes) that fairly compensates content creators.
Yet the Bell coalition surely knows that this is not argument about furthering the objectives of the Telecommunications Act, but rather the Copyright Act. The CRTC has already concluded that that does not help justify website blocking.
Most head-scratching is the claim that this will further the Telecommunications Act objective of user privacy. As I discussed last week, Bell is arguably the worst major Canadian telecom company on user privacy and its attempt to justify website blocking on the grounds that it wants to protect privacy is not credible. The website blocking plan may target privacy enhancing technologies such as virtual private networks, hints at snooping into Internet users’ online activities, and may deploy site blocking technologies that raise serious privacy concerns. If anything, the proposal places privacy at risk.
Bell and its allies have engaged in an active lobbying and public relations campaign in support of website blocking, but from a legal perspective, they must make the case that the proposal furthers the Telecommunications Act objectives. The 102 paragraph application devotes just two paragraphs to the issue. The reason is obvious: website blocking does not further the objectives under the Act and can be rejected by the CRTC on those grounds alone.