Chatham, Ont. telecom TekSavvy files appeal challenging Federal Court website-blocking order

Chatham, Ont.-based telecom service provider TekSavvy filed a notice of appeal this week challenging a Federal Court decision ordering a number of Canadian internet service providers (ISPs) to block access to the GoldTV streaming service.

Brought forward by Bell Media, Rogers Media and Quebec-based communications company Groupe TVA, the motion that ultimately led to the Federal Court's decision argued that GoldTV's operators unidentified defendants referred to as John Doe 1 and John Doe 2 violated the Copyright Act by "operating unauthorized subscription services that provide subscribers access to programming content over the Internet," according to Federal Court justice Patrick Gleeson.

Gleeson ultimately ruled in favour of Bell, Rogers and Groupe TVA, giving 10 ISPs including TekSavvy which opposed the initial motion 15 days to "block or attempt to block access by at least their residential wireline Internet service customers to the websites or online services identified."

The terms of TekSavvy's appeal called for the Federal Court's Nov. 15 decision to be set aside, arguing that Gleeson erred in his interpretation of certain portions of the Telecommunications Act, as well as his interpretation of existing copyright protections outlined in the federal Copyright Act.

The ISP's appeal notice also argued Gleeson's order isn't compliant with the freedom of expression enumerated by the Canadian Charter of Rights and Freedoms.

TekSavvy wouldn't provide comment on the company's plan to appeal the Federal Court's ruling "in order to focus on developing the appeal," spokesperson Trevor Campbell saidin an email to CBC News.

Federal Court ruling is 'unprecedented,' says internet law expert

University of Ottawa law professor and Canada Research Chair in internet and e-commerce law Michael Geists described the Federal Court's Nov. 11 decision as "unprecedented."

"It is the first time we've seen a wide blocking order like this, and I think it's a decision that's highly problematic from both the legal perspective, as well as, I think importantly, from a policy perspective," he said.

"In effect, we have the court substituting its judgment on what a safe blocking system should look like what I think is really something that belongs with Parliament and elected officials."

At the same time, Geist said TekSavvy's appeal shows that Canada's communication system is an "outlier," especially when some ISPs and telecom companies around the world have taken to defending net neutrality and arguing against website-blocking regimes.

"If they do, [they argue] that there needs to be a robust set of safeguards to ensure that there isn't over-blocking and freedom of expression rules are appropriately respected," said Geist.

Geist added the fact that "large companies like Bell and Rogers effectively taking themselves to court to establish a site-blocking system" shows the kind of harm to public interest created by "some very large companies that control both the content and the carriage side of the system."

Though he said it's premature to speculate on the results of TekSavvy's appeal, Geist said he was grateful that "there's at least one company out there that's willing to stand up for its customers."

Still, not all Canadian telecom industry critics were as optimistic about TekSavvy's intentions as Geist.

John Lawford, executive director of the Public Interest Advocacy Centre (PIAC), said he believes a large part of TekSavvy's appeal is "quite administrative and technical."

"They're probably also concerned that they won't be able to block all traffic that tries to get to [GoldTV] or from it, because people use virtual private networks and spoof all sorts of stuff," Lawford said. "There's probably many easy technical means to circumvent their actions, and they probably also are concerned with the time and effort to block."

Lawford added TekSavvy might not want to act as a "chokehold and doing all the administrative facilitation for the [copyright] holders, when they're just trying to run a network."

As for what comes next, Geist said it's likely more website-blocking requests will be brought forward as a result of the Federal Court's ruling.

"They've shopped around this proposal to regulators, to politicians and now to courts," he said. "Now that they've got a precedent, I would expect to see them attempt to use this widely."