CIPPIC to Intervene in Novel Website Blocking Case

CIPPIC was granted [1] leave to intervene before the Federal Court of Appeal in Teksavvy Solutions Inc v Bell Media Inc, FCA File No A-440-19, an appeal of an order [2] compelling Canada's ISPs to block access to a website accused of copyright infringement. The order under appeal is novel, and if approved will have far-reaching implications for free expression and balanced copyright, creating an extraordinary new censorship power that the applicants have sought in trade negotiations [3], at parliament [4], and at the CRTC [5], without success.

The intervention order itself adopts a thoughtful, but decidedly novel [6] approach in its application of the Federal Court of Appeal's uniquely rigorous test for public interest intervention. As set out in CIPPIC's initial motion to intervene, dated February 3, 2020 (paras 5-12 [7]) and affirmed [8] by the case management judge in a brief and pointed direction dated April 24, 2020, the test for intervention requires extensive coordination among different public interest interveners to avoid duplication. In light of the interveners' demonstrably successful efforts to coordinate [9], the Court took the exceptional step of merging many of the parties, allowing CIPPIC to file a joint intervention with our close colleagues at the Canadian Internet Registration Authority (CIRA [10]). The British Columbia Civil Liberties Association (BCCLA [11]) was also granted leave to elaborate on its detailed proposed submissions [12] regarding the need to account for freedom of expression when issuing orders that interfere with access to expressive content. The intervention order is also innovative for its willingness to depart from a categorical approach to classifying proposed interveners, and instead consider the particular characteristics of specific parties and their historical record of intervention. This allows for a more thoughtful and contextual approach to granting intervener status, while interveners will need to be more cautious in implementing the Court's conditions of intervention or risk developing a negative track record and threatening future interventions.

Three other parties seeking to intervene on behalf of intellectual property rights holders were also granted leave to intervene, and merged into a single intervention. CIPPIC is represented by Alyssa Tomkins and James Plotkin of Caza Saikaley, SRL/LLP.

UPDATE: On August 3, 2020, CIPPIC and CIRA filed their joint Facta [13]. A hearing has not yet been scheduled in this matter.

Key Materials:

• CIPPIC/CIRA, Interveners' Joint Memorandum of Fact and Law, August 3, 2020 [13]
• BCCLA, Intervener's Memorandum of Fact and Law, August 3, 2020 [14]
• IP Rights Groups, Interveners' Joint Memorandum of Fact and Law, August 3, 2020 [15]
• Teksavvy Solutions Inc, Appellant's Memorandum of Fact and Law, March 13, 2020 [16]
• Bell Media et al, Respondents' Memorandum of Fact and Law, September 2, 2020 [17]

Image source: Stanislav Lvovsky, "Censored", Flickr [18], September 28, 2015, CC-BY-NC-ND 2.0