The CRTC this morning rejected the Bell coalition’s website blocking proposal, concluding that the application to establish a new anti-piracy agency and approve site blocking without court oversight falls outside its jurisdiction. Opponents of the site blocking proposal frequently cited concerns with the proposal and the limits of the CRTC’s mandate: my posts discussed how it failed to further and undermined the Telecommunications Act policy objectives, and was inconsistent with the CRTC’s policy direction. Similar comments came from groups such as ISOC Canada, which argued that the applications involved copyright, not telecommunications.
Having reviewed thousands of submissions, the CRTC would appear to agree. The Bell coalition relied heavily on two provisions in the Telecommunications Act to support its application. First, it pointed to section 24 which gives the CRTC the right to impose conditions on service, but the CRTC concluded that including site blocking within that provision created conflicts with the Copyright Act:
the proposed regime requires sections 24 and 24.1 of the Telecommunications Act to be interpreted in a way that creates a direct purposive and contextual conflict with the Copyright Act. Moreover, such an interpretation of the jurisdiction granted to the Commission by the Telecommunications Act runs contrary to the principle of interpreting sections harmoniously with related legislation.
The other section – section 36 – restricts the ability of carriers to control the content of messages without CRTC approval. Yet the Commission rightly noted this is an authorizing power, not a mandated power:
Section 36 of the Telecommunications Act limits the ability of carriers to control the content of messages carried over their networks without prior Commission authorization. While this section gives the Commission the explicit power to authorize an ISP to block a website, the proposed regime would go further and require such blocking pursuant to a Commission order. Because section 36 confers an authorizing power and not a mandatory power, the power to mandate blocking must be found elsewhere and must relate to subject matter that is clearly within the Commission’s jurisdiction under the Telecommunications Act.
The commission also examined whether the proposal fit within the Telecommunications Act policy objectives, finding that it only does so in a very tangential way:
In the Commission’s view, the proposed regime can be said to target the policy objectives in only a tangential way, in the sense that they address a social or economic need. The Supreme Court’s findings with respect to the objectives in the Broadcasting Act are equally applicable to an interpretation of the policy objectives in the Telecommunications Act: “establishing any link, however tenuous, between a proposed regulation and a policy objective in s. 3 of the [Broadcasting] Act is [not] a sufficient test for conferring jurisdiction on the CRTC.“
The policy objectives in the Telecommunications Act give the Commission extensive leeway to address social and economic needs broadly. For example, the Commission has addressed issues of public safety (e.g. through 9-1-1 and wireless public alerting regulation) and accessibility (e.g. through video relay service regulation). However, in the case of the proposed regime, which relates at its heart to the enforcement of the Copyright Act in the absence of a specific enforcement mechanism established by Parliament, any link to the policy objectives in the Telecommunications Act is tenuous, such that the Commission cannot support a finding of jurisdiction.
In light of all the above, the Commission determines that it does not have the jurisdiction under the Telecommunications Act to implement the proposed regime and, consequently, it will not consider the merits of implementing the regime. The Commission therefore denies the FairPlay Coalition’s application.
Instead of a ill-advised application to the CRTC, the Commission recommended that the issue be considered in two policy processes: the Copyright Act review and the broadcast-telecom review panel. Those are both better placed to assess the issue and address the myriad of concerns that Bell and its allies largely dismissed: the absence of court orders, implications for freedom of expression, net neutrality, privacy, and competition.
In fact, the issue did arise during Bell’s copyright review appearance last week before the Industry committee. After Bell asked for legislative reforms to make it easier to obtain orders requiring actions from intermediaries such as ISPs, MP David Graham asked whether Bell had tried to use existing rules to obtain a court order. Bell’s Robert Malcolmson avoided the question, citing legal actions involving set-top boxes instead [the correct answer is presumably no]. Moreover, when Graham also noted that a majority of countries with site blocking require a court order, Malcolmson responded by stating “there are a variety of regimes around the world.”
The CRTC’s denial of the site blocking application is an important step toward stopping a dangerous proposal, but Bell will surely continue to pursue its proposal in alternate venues. Interestingly, the USMCA does not include any reference to site blocking or seek to establish such a system. Thousands of Canadians stepped up in the spring to ensure that the Commission was aware of the legal, technical, and policy concerns with site blocking without a court order. In the months ahead, they may need to speak out yet again.