The Bell website blocking coalition has consistently argued their plan is similar to those found in other countries that have permitted website blocking. As I detailed in my lengthy series on the proposal, it is actually an outlier, since the absence of court orders for blocking puts it at odds with virtually every other country that insists on court orders as a matter of basic due process. The proposal is also a significant outlier in another important respect, however. In most countries, telecommunication providers oppose website blocking, consistent with longstanding and widely held views that they should act as neutral intermediaries that provide carriage rather than play a proactive role of blocking access to online content.
Indeed, a review of many of the site blocking cases from around the world finds telecom companies opposing efforts to impose blocking orders. Last week, Vodaphone challenged a German court order to block a streaming site, arguing that it undermines consumer rights and its freedom to operate. Similar cases can be found in many other countries: T-Mobile refusing to block access in Austria, an Austrian ISP association welcoming a court ruling limiting blocking, Telenor refusing to block in Norway, several ISPs challenging blocking orders in the Netherlands, Greek ISPs successfully arguing in court that blocking is disproportionate, and Finnish ISP Elisa appealing a court order to block sites.
For a telecom company to play the lead role – supported by several other telecom and cable companies – makes Canada an outlier in the world of global telecommunications. For many years, Canadian telecom providers were neutral with respect to content. When the Canadian Recording Industry Association launched file sharing lawsuits against individual Canadians in 2004, Bell and Rogers initially adopted a neutral positions, neither opposing the suits nor supporting them (Shaw and Telus were far more committed to protecting their customers’ privacy). Over the years, Bell typically joined with other ISPs, zealously safeguarding its positions as an intermediary in the Supreme Court of Canada’s SOCAN v. CAIP decision and successfully fighting for fair dealing in the 2012 SOCAN v. Bell ruling. During the 2009 national consultation on copyright, Bell attended a Toronto public roundtable and expressed support for the positions of the Business Coalition for Balanced Copyright (which featured telecom companies as members and which voiced support for fair use and appropriate limits on digital locks).
Why the change?
First, the Canadian communications market is one of the most vertically integrated in the world, with many of the leading telecom companies owning significant broadcast properties or other content-related investments. That is true for Bell (CTV), Rogers (CITY-TV), Videotron (TVA), and Shaw (Corus/Global). All are members of the website blocking coalition. Leading telecom providers and ISPs that focus on carriage, such as Telus and TekSavvy, are not.
The shift in emphasis toward content, which is particularly pronounced at Bell, plays an important role in changing policy priorities. For example, last year Bell became an inaugural member of the Alliance for Creativity and Entertainment, a new anti-piracy group. Membership costs Bell US$200,000 annually, for which it gets to suggest targets for law enforcement and to utilize the MPAA’s anti-piracy resources. Bell the only Canadian company in the motion picture association backed alliance.
Second, the willingness of telecom and cable companies to oppose the interests of their own subscribers is indicative of an uncompetitive Internet services market. If Canadian consumers had real choice, supporting website blocking or actively opposing pro-consumer policies such as net neutrality or telecom transparency would have real consequences as many might take their business elsewhere. In the Canadian market, where consumer complaints and reports of misleading sales tactics are common, the companies seemingly operate with little fear of a competitive backlash (they are typically far more concerned with a regulatory or political response).
The federal government and ISED Minister Navdeep Bains have expressed increasing concern about the state of telecom competition and the affordability of Internet and wireless services. The Bell coalition website blocking plan would further reduce competition and lead to increased prices as ISPs face costs that could run into the millions for website blocking technologies. In fact, the outlier status of Canadian telecom companies in leading on a website blocking proposal provides the government with evidence of the negative consequences that arise from insufficient competition and excessive vertical integration.