Canada's SOPA moment: Canadian telcos pushing for site blocking without court orders

[Len]

SOPA may be a distant memory for the Internet community, but Canada now finds itself in its own SOPA moment. Telecom giant Bell leads a coalition of companies and associations in seeking support for a wide-ranging website blocking plan that could have similarly harmful effects on the Internet, representing a set-back for privacy, freedom of expression, and net neutrality. While that need not be the choice - Canada’s Copyright Act already features some of the world’s toughest anti-piracy laws - the government and the CRTC, Canada's telecom regulator, are faced with deciding on the merits of a website blocking plan that is best described as a disproportionate, unconstitutional proposal sorely lacking in due process.

The coalition has tried to paint the Canadian market as one rife with piracy, yet the data does not support its claims. Piracy rates in Canada are below global averages and even the study used by the coalition to support its demands shows that piracy rates declined during the study period. The site blocking groups say 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," but the Canadian data on the digital economy and Canadian creative sector show a thriving industry.

In fact, according to the latest data from the Canadian Media Producers Association, the total value of the film and television sector in Canada exceeded $8 billion last year, over than a billion more than has been recorded over the past decade. Last year everything increased: Canadian television, Canadian feature film, foreign location and service production, and broadcaster in-house production. Moreover, Canada is now one of the world's leading markets for online video services, with more than half of all English-language households subscribe to Netflix.

The economic evidence simply does not make the case for drastic reforms such as site blocking. Even if there was an urgent issue to address, however, the coalition’s proposal raises serious legal concerns. It envisions the creation of a new anti-piracy organization that would be responsible for identifying sites to block. The block list would be submitted to the CRTC for approval, which would then order all Internet providers to use blocking technologies to stop access to the sites. There would be no need for a court order under the system.

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 common is misleading and inaccurate. Of the 22 countries that have site blocked for copyright purposes, 20 use or have used court orders (the exceptions are Italy and Portugal). Of course, there are many leading 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.

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 coalition proposal seems to be to avoid the courts - would put Canada at odds with almost all our allies and likely be subject to an immediate legal challenge given our emphasis on openness, net neutrality, and due process.

The CRTC has established a deadline of March 1st for submission of comments, though there is an application to extend the deadline. In the meantime, Canadians concerned with the website blocking proposal can ensure that their voices are heard at the CRTC site. They can also take the time to forward their comments to their Member of Parliament and the Minister of Innovation, Science and Economic Development Navdeep Bains.