The Case Against the Bell Coalition’s Website Blocking Plan, Part 1: Canada’s Current

micheal geist

Dr. Michael Geist is a law professor at the University of Ottawa where he holds the Canada Research Chair in Internet and E-commerce Law. He has obtained a Bachelor of Laws (LL.B.) degree from Osgoode Hall Law School in Toronto, Master of Laws (LL.M.) degrees from Cambridge University in the UK and Columbia Law School in New York, and a Doctorate in Law (J.S.D.) from Columbia Law School. Dr. Geist has written numerous academic articles and government reports on the Internet and law and was a member of Canada’s National Task Force on Spam. He is an internationally syndicated columnist on technology law issues with his regular column appearing in the Toronto Star, Ottawa Citizen, and the BBC. Dr. Geist is the editor of In the Public
Interest: The Future of Canadian Copyright Law, published in 2005 by Irwin Law, the editor of several monthly technology law publications, and the author of a popular blog on Internet and intellectual property law issues. Dr. Geist serves on the Privacy Commissioner of Canada’s Expert Advisory Board, on the Canadian Digital Information Strategy’s Review Panel, the Electronic Frontier Foundation Advisory Board, and on the Information Program Sub-Board of the Open Society Institute. He has received numerous awards for his work including the Les Fowlie Award for Intellectual Freedom from the Ontario Library Association in 2009, the Electronic Frontier Foundation’s Pioneer Award in 2008, Canarie’s IWAY Public Leadership Award for his contribution to the development of the Internet in Canada and he was named one of Canada’s Top 40 Under 40 in 2003.

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The Bell coalition’s website blocking proposal has sparked a huge public outcry, with thousands of Canadians submitting interventions to the CRTC opposing a plan premised on website blocking without direct court involvement. I have written several posts on the issue – a general assessment on why it is a terrible idea, a closer look at the economic reality of the Canadian film and television sector, and a discussion of Bell’s inconsistent comments to the CRTC vs. business analysts – but the case against the radical plan merits a closer look at both the evidence and the legal arguments. With this post, I begin a new series that will make the case against the Bell coalition’s website blocking plan.

The series begins with the initial response to the plan from Innovation, Science and Economic Development Minister Navdeep Bains, who stated:

We understand that there are groups, including Bell, calling for additional tools to better fight piracy, particularly in the digital domain. Canada’s copyright system has numerous legal provisions and tools to help copyright owners protect their intellectual property, both online and in the physical realm. We are committed to maintaining one of the best intellectual property and copyright frameworks in the world to support creativity and innovation to the benefit of artists, creators, consumers and all Canadians.

Bains was right to note that Canada already has many legal provisions designed to assist copyright owners. In fact, Canada has some of the world’s toughest anti-piracy provisions, which Bell and others have actively used in recent years. This includes lawsuits against set-top box distributors, mod-chip sellers, and websites such as TVAddons. Some of these lawsuits have resulted in massive damage awards running into the millions of dollars.

Further, Canadian copyright law has also been used to shut down websites whose primary purpose is to enable infringement with rights holders relying on an “enabler provision” contained in the 2012 copyright reforms that can be used to target online sites that provide services primarily for the purpose of infringement. It states:

It is an infringement of copyright for a person, by means of the Internet or another digital network, to provide a service primarily for the purpose of enabling acts of copyright infringement if an actual infringement of copyright occurs by means of the Internet or another digital network as a result of the use of that service.

The factors to determine whether the provision applies include:

whether the person expressly or implicitly marketed or promoted the service as one that could be used to enable acts of copyright infringement;

whether the person had knowledge that the service was used to enable a significant number of acts of copyright infringement;

whether the service has significant uses other than to enable acts of copyright infringement;

the person’s ability, as part of providing the service, to limit acts of copyright infringement, and any action taken by the person to do so;

any benefits the person received as a result of enabling the acts of copyright infringement; and

the economic viability of the provision of the service if it were not used to enable acts of copyright infringement.

This powerful legal tool is made even stronger by the existence of statutory damages in Canada that can lead to millions in liability for infringement. In fact, Canada is in the minority of countries that even has statutory damages as most require evidence of actual damages. The combination of specific provisions to target sites that facilitate infringement with the possibility of enormous damage awards means that Canada already has tough copyright laws in place to combat piracy.

Yet the Bell coalition is effectively arguing that it needs more laws or legal tools to target non-Canadian sites that may be accessed by Canadians. However, Canadian law already provides for injunctive relief in appropriate circumstances with the Supreme Court of Canada’s Equustek decision one of the more recent manifestations of courts issuing orders to non-parties in support of intellectual property rights.

There is no guarantee that courts will issue such an injunction – courts around the world have consistently identified the challenge of balancing protection of intellectual property rights with the implications of site blocking on freedom of expression – but a comprehensive, impartial court review with full due process is precisely what should be required before the power of the law is used to block access to content on the Internet. Copyright owners are seeking to create their own system at the CRTC without direct court involvement or policy review by Parliament. Before entertaining such a possibility, they should surely be required to test the effectiveness of existing law.

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Having examined the state of current Canadian copyright law with respect to anti-piracy measures, the series outlining the case against the Bell coalition’s website blocking plan continues with an examination of the evidence on Canadian piracy. The coalition argues that piracy in Canada is a growing threat, relying on data from MUSO to suggest that current activities “makes it difficult if not impossible to build the successful business models that will meet the evolving demands of Canadians, support Canadian content production, and contribute to the Canadian economy.” My next post will discuss economic evidence in Canada, highlighting record growth in authorized streaming services and production in the Canadian creative sector. This post is limited to data on Canadian piracy rates and whether drastic measures such as website blocking are needed.

Before discussing piracy in Canada, it is important to emphasize that critiquing the data on piracy does not make one “pro-piracy.” No one denies that infringing activity takes place, whether in Canada or elsewhere. Rather, website blocking represents a significant reform with major costs and implications for freedom of expression, net neutrality, and the balanced enforcement of intellectual property rights. Without a compelling case that piracy in Canada is particularly severe – and evidence that the proposed solution will have a major impact on piracy rates – the risks and costs associated with such a plan will outweigh any perceived benefits.

Canadian Studies on Piracy Rates

The most recent Canadian government backed report on piracy is the Circum Network study from 2016. The Bell coalition submission cites the report in support of the claim that Internet providers should play a role in combatting piracy. Yet the report contained few recommendations and did not find much enthusiasm among Canadian stakeholders for investing in anti-piracy activities (which may help explain why existing tools are not being used). The report states that “Canadian representatives of rights holders consulted as part of this study tended not to give online piracy fighting a high priority. While they condemn unauthorized access to intellectual property and while some rights holders indicated actively reacting, they generally considered that their scarce resources are better invested in other battles and counted on global organizations to pursue the fight.” In fact, there was even disagreement among those rights holders that supported government action. While some wanted law enforcement to escalate the piracy issue, others preferred to focus primarily on education efforts.

Those views are echoed in other reports. For example, a 2017 report from the Canada Media Fund noted that “some industry watchers have gone so far as to suggest that piracy has been ‘made pointless’ given the possibility of unlimited viewing in exchange for a single monthly price”, a reference to the commercial success of services such as Netflix and other online video streaming services that now generate more than $1 billion per year in Canada in revenue.

In addition to the commercial success in Canada that refute claims that it is near-impossible to establish successful business models, the data consistently shows that Canada is not a global leader when it comes to piracy. For example, Music Canada recently reported that Canada is well below global averages in downloading music from unauthorized sites (33 per cent in Canada vs. 40 per cent globally) or stream ripping from sites such as YouTube (27 per cent in Canada vs. 35 per cent globally.

The lower Canadian piracy rates are also reflected in data from CEG-TEK, one of the most prolific (mis)users of the notice-and-notice system, which reported in 2015 that there were “massive changes” in the Canadian market after the new copyright legal rules were established. In fact, it noted that the biggest decrease in piracy occurred on Bell’s network:

• Bell Canada – 69.6% decrease
• Telus Communications – 54.0% decrease
• Shaw Communications – 52.1% decrease
• TekSavvy Solutions – 38.3% decrease
• Rogers Cable – 14.9% decrease

Similarly, the Business Software Alliance reports that Canada is at its lowest software piracy rate ever, well below global and European averages.

The MUSO Report: Declining Piracy Rates and Questionable Assumptions

The Bell coalition website blocking proposal ignores this data, putting its eggs primarily in one basket: a MUSO study on the state of Canadian piracy (Sandvine data that 7% of North American households subscribe to unauthorized services leaves 93% not subscribing to such services, which does not advance their argument nor does it involve Canadian-specific data). The MUSO study comes up with a big number – 1.88 billion visits to piracy sites in Canada. Yet a closer look at the study shows that Canadian piracy rates declined during the study period. Moreover, there are very questionable assumptions that call into question the validity of the data and highlight why definitions of “piracy sites” is subject to considerable manipulation.

The report itself plainly states that Canadian piracy rates declined during the study period. It points to the trends in the first six months vs. the last six months:

Metric
Trend
Piracy Sites Visits (Overall) -5.4%
Streaming Sites -2.89%
Web Download Sites -1.37%
Public Torrent Sites -26.78%
Private Torrent Sites -8.38%


In other words, for every type of site measured by MUSO, Canadian traffic declined during the study period.

Beyond the decline in piracy visits, the study is subject to questionable assumptions that raise questions about the validity of the data. Underlying the MUSO data is website traffic information from SimilarWeb, which samples traffic in countries around the world. There have been several studies that found that SimilarWeb is prone to over-estimating website traffic (here, here), which could mean the overall number is inflated.

Even if the visits are accurate, the MUSO data captures many sites that fall outside the types of piracy sites most envision. The company takes its own list of 23,000 piracy sites and uses the SimilarWeb data as the basis for concluding the number of piracy visits. Yet the sample sites used by MUSO highlight the challenge in identifying what constitutes a piracy site. For example, web download sites include addic7ed.com, a site that contains user-generated sub-titles for television shows and movies. The site includes completed sub-titles and works in progress that allow users to contribute to the translations and sub-titles. It does not contain full video or audio. The legality of user-generated sub-titles may be open for debate (sub-titles can be used for lawfully acquired videos) but few would think of this kind of site as “blatantly, overwhelmingly, or structurally engaged in piracy.” The MUSO list also contains multiple sites that can be used to capture the video from sites such as YouTube. Stream ripping is a concern for the music industry, but these technologies (which are also found in readily available software programs from your local BestBuy) also have considerable non-infringing uses, such as for downloading Creative Commons licensed videos also found on video sites.

Where the site used in the database is widely viewed as a “piracy” site, the data doesn’t always support claims that website blocking is an effective tool for reducing site visits. For example, putlocker.is identified by MUSO as sample streaming site. Indeed, the site is on the blocklist in both Australia and the United Kingdom (both established through court rulings, not the administrative process envisioned by the Bell coalition). SimilarWeb has the latest data for site visits to Putlocker.is with Canada ranking below both Australia and the UK as a traffic source, despite inclusion on a blocklist in the latter two countries. Canada is also declining faster as a traffic source than Australia, the UK, and the United States (which is easily the top source of traffic).

None of this data is meant to justify infringing activity. However, 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. More on that side of the story in tomorrow’s post.

The case against the Bell coalition’s website blocking plan continues with an examination of the state of new digital business models and Canadian content production (earlier posts looked at Canadian copyright law and weak evidence on Canadian piracy). Given the high threshold needed to gain CRTC support for website blocking (which requires exceptional circumstances), the coalition proposal must not only make the case that there is a significant Canadian piracy problem, but also that piracy is having an enormous impact on the business and creative sectors.

The proposal tries to meet that standard by claiming that Canadian piracy “makes it difficult if not impossible to build the successful business models that will meet the evolving demands of Canadians, support Canadian content production, and contribute to the Canadian economy.” Yet as with the actual data on Canadian piracy, which firmly rebuts claims that Canada is a piracy haven, the Canadian data on the digital economy and Canadian creative sector show a thriving industry.

Supporting Canadian Content Production

As I noted in a recent post on the latest data from the Canadian Media Producers Association, 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.

If the standard the CRTC is to consider involves support for Canadian content production, the situation has never been better. Canadian content production hit an all-time high last year at $3.3 billion, rising by 16.1%. Notably, the increased expenditures do not come from broadcasters, who lead on the website blocking proposal and whose relevance continues to diminish year-by-year. In fact, the private broadcasters (led by Bell) now contribute only 11% of the total financing for English-language television production. Their contribution is nearly half of what it was just three years ago (now standing at $236 million) in an industry that is growing. Yet despite the private broadcaster decline, money is pouring into the sector from distributors (who see benefits of global markets) and foreign financing (which has grown by almost $200 million in the past four years) leading the way. The sector remains heavily supported by the public, with federal and provincial tax credits now accounting for almost 30% of financing.

The increase in foreign investment in production in Canada is staggering. When Netflix began investing in original content in 2013, the total foreign investment (including foreign location and service production, Canadian theatrical, and Canadian television) was $2.2 billion. That number has doubled in the last five years, now standing at nearly $4.7 billion. While much of that stems from foreign location and service production that supports thousands of jobs, foreign investment in Canadian television production has also almost doubled in the last five years

The increasing irrelevance of private broadcasters for financing Canadian television production is particularly pronounced in the fiction genre (ie. drama and comedy shows). This is easily the most important genre from an economic perspective, with $1.29 billion spent last year. Private broadcasters only contributed $59 million or five percent of the total. By comparison, foreign financing was $285 million. In sum, the data confirms that there has never been more money invested in film and television production in Canada.

Supporting Digital Business Models

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.

Bell CEO George Cope confirmed the success during a recent quarterly conference call, stating:

Crave strategy continues to work for us number of customers up 22% year-over-year, allowing us to have a product that you can view through traditional linear TV or and over-the-top environment.

The positive data sparked a question from Drew McReynolds about the rate of cord cutting:

on cord cutting, cord shaving trends overall, you are obviously doing quite well on Crave and Alt TV, wondering if you’re seeing in the TV market a real structural acceleration, let’s say over the last 6 to 12 months or is it more of a steady acceleration or steady kind of rate of cord cutting, cord shaving?

Cope’s response:

It seems steady to me – clearly we have not seen some acceleration, but we notice a growing share and we got to be in, you know we absolutely have to be in that space in the market place, so we actually saw some growth and you know from a pay sub perspective, but we haven’t seen a sudden acceleration and you can – the industry will now take the total TV net adds and be able to see that you know the decline in, and I don’t think that rate has accelerated

Simply put, Canada is now one of the world’s leading markets for online video services. According to the Reuters Institute Digital News Report 2017, Canada ranks among the top countries for consumers paying for online video services. There are now approximately 20 subscription streaming services in Canada and surveys indicate that more than half of all English-language households subscribe to Netflix. In fact, the data indicates that a higher percentage of Canadians pay for online video services than consumers in countries with site blocking such as Australia and the U.K.

That is not a market where digital business models can’t succeed due to piracy. Rather, the data confirms Canadians’ willingness to pay for well-priced, convenient services, which has presumably prompted CBS to expand its streaming service to Canada, following on Amazon’s recent streaming video entry. Record earnings, a top tier global ranking for subscribers, and new market entrants are the sign of a thriving market, not one struggling to survive due to claims of piracy.

The Canadian success story is not limited to online video as the online music market has experienced similar growth. According to industry data, the Canadian music market is growing much faster than the world average (12.8% in 2016 vs. 5.9% globally), streaming revenues more than doubled last year to US$127.9 million (up from US$49.82 million) growing far faster than the world average, the Canadian digital share of revenues of 63% is far above the global average of 50%, and Canada has leaped past Australia to become the 6th largest music market in the world. The numbers are big for music creators as well. SOCAN, Canada’s largest music copyright collective, recently reported that its Internet streaming revenues rose 46% last year, nearly hitting $50 million annually. In 2013, that number was only $3.4 million.

Nordicity recently issued a detailed look at trends in the creative industries, summarizing the situation in the following manner:

In 2016, it was noted that OTT (over-the-top video) takes a piece of subscriber revenues from BDUs, as well as from pay/specialty broadcasting services. Newly recognized is both the disruptive impact on television and also the opportunity for content producers.

The opportunity for creators is the theme of Canadian Heritage Minister Melanie Joly’s vision for the sector, which focuses on encouraging investment in Canada and sales to foreign markets. The data suggests great success in this regard, demonstrating that the Bell coalition’s claims about the impossibility of building successful business models due to piracy bear little resemblance to the reality of the Canadian market.

absense of court orders

he first three posts in the case against the Bell coalition website plan focused on why it has failed to provide convincing evidence that the drastic step of site blocking is needed (existing law, weak evidence on Canadian piracy, limited negative impact on the market). The series continues by examining some of the problems with the proposal itself. One of the most obvious problems – indeed one that is fatal – is the absence of court orders for website blocking. The attempt to avoid direct court involvement in blocking decisions means the proposal suffers from an absence of full due process, raising a myriad of legal concerns. If adopted, the coalition website plan would put Canada at odds with almost every other country that has permitted blocking since the data is unequivocal: the overwhelming majority require a court order for site blocking.

The website blocking coalition has tried to downplay the absence of a court order from its proposal by suggesting that many countries have site blocking rules and that relying on alternate systems is commonplace. Its application states that at least 20 countries have site blocking, some with courts (the UK) and some without (Portugal). An examination of website blocking around the world reveals the inference that non-court ordered blocking is commonly used is misleading and inaccurate.

Just how rare is non-court ordered blocking? Working with Amira Zubairi, a University of Ottawa law student, we examined 22 countries that have or have had some form of copyright-related website blocking. Some groups say that there are 27 countries with website blocking, but we excluded five countries due to widespread censorship in their blocking systems: Saudi Arabia (which features government-backed Internet blocking), Indonesia (which has blocked 800,000 sites), Malaysia (which regularly uses the power to block legitimate sites), Turkey (which uses real-time large scale blocking of sites including Wikipedia) and South Korea (which uses censors to block access to thousands of web pages).

Our research shows that of the 22 countries that have site blocked for copyright purposes, 20 use or have used court orders (the exceptions are Portugal (which is voluntary) and Italy (which permits both)). Of course, there are many notable countries, including the United States, Japan, Switzerland, Mexico (whose Supreme Court ruled blocking is disproportional) and New Zealand, that do not have site blocking at all.

Comparative Analysis of Copyright Website Blocking Oversight

Country
Court/No Court
Cases/Experience
Argentina Court The Argentinean National Communications Commission ordered ISPs to block access to the Pirate Bay after a Buenos Aires court issued an injunction.
Australia Court Rights holders can apply to the Federal Court for an injunction directing ISPs to block access to websites that infringe copyrighted content when: the geographical origin of the website is outside of Australia, and when the website has the primary purpose of infringing or facilitating the copyright infringement. The Australian system is under review.
Austria Court Austrian courts can issue injunctions that can be imposed on ISPs to prohibit them from allowing customers to access certain websites. In 2016, an appellate court removed a block on the Pirate Bay, however, ruling that rights holders had failed to exhaust all available remedies.
Belgium Court In 2011, a Belgian appellate court overturned a lower court ruling that found that blocking was disproportionate to allow for the blocking of the Pirate Bay.
Chile Court Chile adopted a new law in 2010 regulating ISP liability for online copyright infringement. The law requires a court order before ISPs are required to take down allegedly copyright-infringing material from websites, block access to an allegedly infringing website, disclose customer information, or terminate customers’ Internet accounts.
Denmark Court In 2015, a Danish court ordered the blocking of 12 sites. Denmark was the first country to order the blocking of the Pirate Bay.
Finland Court Section 60(c)(1) of the Finland Copyright Act allows courts to issue an injunction to discontinue and order intermediaries to discontinue the making of allegedly copyright infringing material available to the public where requirements set out in the provision are fulfilled. In 2011, a Helsinki court ordered the blocking of the Pirate Bay.
France Court Article L. 336-2 of the French Intellectual Property Code allows rights holders to seek a court order to have ISPs implement measures to stop or prevent online copyright infringement.
Germany Court In November 2015, the German Supreme Court in Karlsruhe ruled ISPs might be responsible for blocking websites offering illegal music downloads, but only if copyright holders showed they had first made reasonable attempts to stop such piracy by other means.
Greece Court Copyright holders can apply for injunctions against intermediaries who facilitate access to third party infringers (Article 64A of the Copyright Law), such as websites that are used for dissemination of music and film. In 2015, an Athens Court ruled that barring access to torrent sites is disproportionate and unconstitutional, while hindering the ISPs’ entrepreneurial freedoms.
Iceland Court In October 2014, the Reykjavík District Court ordered two ISPs (Hringdu and Vodafone) to block the Pirate Bay.
India Court India courts have issued orders for ISPs to block access to sites such as the Pirate Bay.
Ireland Court In April 2017, nine ISPs were ordered to block access to three websites. In January 2018, the Commercial Court in Dublin ordered eight sites blocked.
Italy Both Italian courts can issue blocking orders. In addition, the broadcast and telecommunications regulator Authorities for Guarantees Communication (AGCOM) has the power to issue website blocking injunctions.
Netherlands Court Under Article 26d of the Copyright Act, and Article 15e of the Neighbouring Rights Act, district courts can issue an injunction to prevent copyright and other rights’ infringements through the services of intermediaries, by ordering the intermediaries to cease services used for infringements. The Supreme Court is currently considering whether blocking is a proportionate sanction.
Norway Court In 2015, Norway Oslo District Courthouse ruled that all ISPs and access providers must block the TLDs of a number of torrent tracers like the Pirate Bay. Six different torrent trackers/pirating websites were blocked.
Portugal No Court, Voluntary Proess A voluntary process was formalized through an agreement between ISPs, rights holders, and the Ministry of Culture and the Association of Telecommunication Operators, which allows copyright holders to add new sites to a blocklist without any intervention or oversight from a court.
Russia Court Courts can order ISPs and web-hosts to permanently block websites that provide access to infringing content.
Singapore Court Section 193DDA(1) establishes under the Singaporean Act (Copyright Act) that courts can award an injunction against an ISP if the services of the ISP have been or are being used to access an online location to commit or facilitate copyright infringement, and the online location is a flagrantly infringing online location. In February 2016, Singapore’s High Court ordered local ISPs including Singtel, StarHub, and M1 to disable access to SolarMovie.ph.
Spain Court In March 2012, the Spanish government approved the Sinde Law that requires websites with pirated material to be blocked within 10 days. The legislation created a government body that has the power to force ISPs to block sites. Rights holders can report websites hosting infringing content to a government commission. A court ultimately rules on whether to block the site.
Sweden Court In March 2017, a Swedish court ordered an ISP to block file-sharing websites. On February 13, 2017, the Swedish Patent and Market Court (part of the Svea Court of Appeals), in a judgment of final instance, issued a decision requiring the ISP, B2 Bredband to block access to the file-sharing sites the Pirate Bay and Swefilm.
United Kingdom Court Copyright owners can use Section 97A of the Copyright, Designs and Patents Act 1988 to secure mandatory blocking orders against copyright infringing websites, which must be enforced by major ISPs like BT, Sky Broadband, and Virgin Media.


The comparative data confirms that website blocking for copyright purposes is still quite rare. In those countries that have had it, the most common case involves a court action targeting the Pirate Bay. Moreover, the use of courts highlights how due process concerns are addressed. Courts in several countries, including Mexico, Austria, and Greece, have ruled that site blocking is disproportionate, noting that copyright owners may have failed to exhaust other potential remedies. In fact, just last week the Supreme Court of Canada established a higher threshold for the takedown of content online, shifting away from last year’s Google v. Equustek decision and signalling the importance of having courts consider all rights when seeking to block access to content online.

The absence of a court order means the Bell coalition website blocking proposal would place Canada offside almost all countries that permit blocking. The issue was unsurprisingly the immediate sticking point at a hearing on net neutrality at the Standing Committee on Access to Information, Privacy and Ethics this week where Liberal MP Nathaniel Erskine-Smith immediately focused on the due process concerns with the site blocking proposal. Rogers executive Pam Dinsmore responded that “there is an enormous amount of due process built into the application”, citing the piracy agency review, the CRTC approval and the possibility of an application to the Federal Court of Appeal. However, courts do not issue the block order and the potential for court involvement arises only after a site has been added to the block list and approved by the CRTC.

Further, in questioning from NDP MP Brian Masse about site blocking moments earlier, Rogers’ Dinsmore suggested that the company would only block with a court order:

I think what you’re asking is if an ISP is ordered to block a website by a court, at what stage does the ISP actually do that blocking if in fact that decision gets appealed? It’s a fair question. Presumably we would be obliged, under a blocking order, to block a given website unless there was a stay to the order that was applied for by the website provider, in which case if there was a stay of the decision, pending the appeal and the conclusion of the appeal, then we would not block that website for that time period. But unless there was a stay to the decision, we would be obliged to block, and we would never as an ISP, in this context we wouldn’t block unless there was a blocking order. We wouldn’t take it upon ourselves to make the determination on whether content is legal or illegal. We would await the court order and ergo we would follow it.

Yet the website blocking proposal that Rogers supports would remove the need to wait for a court order.

The proposal is clearly inconsistent with the vast majority of countries around the world. Notwithstanding assurances that there are many systems that do not depend on court orders, the reality is that almost everyone with a free and open Internet only engages in the possibility of website blocking with a court order. The failure to include one – indeed the very point of the Bell coalition proposal seems to be to avoid the court process – would put Canada at odds with almost all our allies and likely be subject to an immediate legal challenge given our rules on openness, net neutrality, and due process.