All That Glitters: Federal Court of Canada Issues Canada's First Website Blocking Order against Goldtv
| DOI | 10.1093/jiplp/jpaa002 |
| Copyright note | © The Author(s) 2020. Published by Oxford University Press. All rights reserved. |
| Date | 07 January 2020 |
| Pages | 83-84 |
| Year | 2020 |
| Published By | Oxford University Press |
Copyright
nAll that glitters: Federal Court of
Canada issues Canada’s first website
blocking order against GoldTV
Bell Media Inc. v GoldTV.Biz (2019) FC 1432, 15
November 2019
On 15 November 2019, the Federal Court of Canada
issued Canada’s first website blocking order in a copy-
right case.
Legal context
Sections 4 and 44 of the Federal Courts Act, RSC, 1985 set
out the power of the Federal Court as a court of equity,
with the ability to grant equitable forms of relief (like
injunctions), namely:
4The division of the Federal Court of Canada called the
Federal Court—Trial Division is continued under the
name “Federal Court” in English and “Cour fe´de´rale” in
French. It is continued as an additional court of law, equity
and admiralty in and for Canada, for the better administra-
tion of the laws of Canada and as a superior court of
record having civil and criminal jurisdiction.
...
44 In addition to any other relief that the Federal Court of
Appeal or the Federal Court may grant or award, a manda-
mus, an injunction or an order for specific performance
may be granted or a receiver appointed by that court in all
cases in which it appears to the court to be just or conven-
ient to do so. (ibid.)
Facts
GoldTV provides an unauthorized subscription service
that allows subscribers to view television content over the
Internet. They operate GoldTV.biz, edge.tm and
GoldTV.ca, along with several subdomains.
The plaintiffs/moving parties are Canadian broadcasters
who either have the right to broadcast much of this content
or are the exclusive licensees of such rights. The third-party
respondents in the matter represented most (but not of all)
of Canada’s Internet Service Providers (ISPs).
The plaintiffs had succeeded in obtaining interim and
interlocutory injunctions against GoldTV; however, the
infringement still continued (particularly since GoldTV
took no part in any of the proceedings). A website blocking
order was therefore sought.
Analysis
Satisfied that a website blocking order was equitable in
nature and relying on its statutory power to grant such
relief, the Federal Court proceeded to issue the order.
Justice Gleeson even noted that, despite the statutory
footing for such an order in the UK, the Court of Appeal of
England and Wales appeared willing to grant the order
under its equitable jurisdiction even if no statutory ground
existed (Cartier International AG v British Sky Broadcasting
Ltd [2016] EWCA Civ 658 (‘Cartier’) para 72).
The court then set out the test to be applied for such
orders. Justice Gleeson indicated that the usual test for
interlocutory relief must first be satisfied (RJR-MacDonald
Inc. v Canada (Attorney General) [1994] 1 SCR 311), plus
an additional tripartite test.
In other words:
1. Is there a serious issue to be tried?
2. Will irreparable harm occur if the relief is not
granted? and
3. Does the balance of convenience favour the plain-
tiff? (RJR-MacDonald Inc. v Canada (Attorney
General) [1994] 1 SCR 311 (‘RJR-MacDonald’))
If so, then:
1. The plaintiff must demonstrate the proposed order
is properly targeted;
2. Such that the internet service providers (ISPs) in
question should justifiably be bound by it; and
3. The effects of the order must balance the interests of
the alleged infringers, ISPs and public. (Bell Media
Inc. v GoldTV.Biz, 2019 FC 1432 (‘GoldTV’) para
44)
The Court held that the RJR-MacDonald conditions were
satisfied. Copyright infringement was a serious matter that
would result in irreparable harm if no relief was granted.
The balance of convenience tipped in the plaintiff’s favour
(much like it did for the earlier interim and interlocutory
injunctions).
Turning to the remaining factors, the court indicated
that proportionality is at the core of these elements. It set
out, and relied upon, the factors enumerated in Cartier to
assess that proportionality (GoldTV, para 52). Namely:
necessity, effectiveness, dissuasiveness, complexity and
cost, barriers to legitimate use or trade, fairness, the avail-
ability of alternatives and safeguards against abuse.
The court noted evidence o f such orders’ effectivenes s
in other jurisdictions (para 81 ), and the cost(s) being
borne by the plaintiffs thr ough the indemnification provi-
sions of the order (paras 90, 1 13 and 114). Other concerns
were essentially addresse d by the court’s tailoring of the
order and the parties’ feedbac k in the drafting of the same
(para 105).
The court was also mindful of the potential impact to
freedom of expression, but adopted the words of the
Supreme Court of Canada (albeit in a different context) in
Google Inc. v Equustek Solutions Inc., 2017 SCC 34 [2017] 1
SCR 824 (‘Equustek’) that ‘the jurisprudence, has not, to
date, accepted that freedom of expression requires the
Journal of Intellectual Property Law & Practice, 2020, Vol. 15, No. 2 83CURRENT INTELLIGENCE
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