Court nixing Que. site-blocking ‘helpful’ against FairPlay: advocates

The Quebec Superior Court has ruled against a plan by the Quebec government that would have forced Internet service providers (ISPs) to block unauthorized gambling websites, in a decision that could be relevant for an anti-piracy proposal currently in front of the CRTC. The court said in a French-language decision last week that it has “no hesitation in concluding” that the plan “intervenes directly in two areas that fall under exclusive federal jurisdiction, namely, telecommunications and criminal law.” While the issue of provincial or federal jurisdiction isn’t relevant to the anti-piracy proposal put forward by the FairPlay coalition, what could matter is a section of the Superior Court ruling that says illegality of content doesn’t matter when it comes to blocking. “There’s some language in the decision around how section 36 is viewed by that judge in that court that I think could be used to be argued in the FairPlay case,” John Lawford, executive director of the Public Interest Advocacy Centre (PIAC), which opposes the proposal, said in a phone interview. The section stipulates that Canadian carriers are not allowed to control or influence content running on their networks. The decision states that under that section of the Telecom Act, telecoms “shouldn’t have any say in content at all, and if they do want to control content it’s only for protection of the network, and stuff rolling around the network doesn’t harm the network,” he added. “It should be, I believe, a helpful precedent for FairPlay,” Lawford said. The Quebec government first introduced the site-blocking measure in its 2015 budget, which included changes to the the Consumer Protection Act, making it illegal for ISPs to “give access to an online gambling site whose operation is not authorized under Quebec law.” The measure, Bill 74, was adopted by Quebec’s national assembly in May 2016. The proposal drew unusual consensus from across the industry, with representatives from large telecoms and consumer and advocacy groups, as well as the CRTC, all agreeing that it would run counter to section 36 the Telecom Act. That section says that “except where the approves otherwise, a Canadian carrier shall not control the content or influence the meaning or purpose of telecommunications carried by it for the public.” Telecom executives blasted the bill at an industry conference in 2016, with Ted Woodhead, senior vice-president of regulatory affairs at Telus Corp., calling it “about as offensive to the net neutrality principle as you could possibly ever dream of.” However, the CRTC put its proceeding on the case on hold while a challenge initiated by the Canadian Wireless Telecommunications Association (CWTA) in July 2016 made its way through the courts. It asked Quebec’s Superior Court to determine the law is unconstitutional, given that it contravenes federal jurisdiction of both telecommunications and criminal law. Almost exactly two years later, the Superior Court agreed with the industry association. The decision comes as the CRTC is considering another proposal by a 25-member coalition of Canada’s largest telecoms and broadcasters, including BCE Inc., Quebecor Inc., Rogers Communications Inc. and Corus Entertainment Inc., and groups representing content creators that would see some websites blocked in Canada in an effort to fight piracy. FairPlay is asking the CRTC to create an independent agency that would “identify websites and services that are blatantly, overwhelmingly, or structurally engaged in piracy,” which ISPs would be required to block customers from accessing. The proposal has garnered opposition from academics, advocacy groups and thousands of individuals, as well as the House of Commons ethics committee -- which said if the CRTC approved the proposal, the federal government should consider overturning it. University of Ottawa professor Michael Geist also said in a blog post Tuesday that the Quebec court decision could be relevant to the coalition’s proposal. Geist noted that the “Quebec government argued that Section 36 of the Telecommunications Act permits an ISP to block illegal content.” The FairPlay coalition has consistently argued that their plan doesn’t bring up any net neutrality issues because net neutrality only applies to legal content. He said that the “court disagreed, citing the net neutrality rules and emphasizing that interfering with signals is limited to network threats.” He added that the “link to network threats is important because supporters of the Bell site blocking plan (who argue that it does not implicate the net neutrality rules) cite the 2009 CRTC net neutrality decision reference to illicit materials, which they claim could include copyright infringing materials.” Tim Denton, former CRTC commissioner and current chairman of the Internet Society of Canada, which argued against the proposal, said the court ruling isn’t decisive, but it is “useful and helpful.” He said in an email that this case “may prove a useful argument in favour of the limits on conditions under which an ISP can be forced to intervene in traffic.” — With reporting by Anja Karadeglija at akarad@thewirereport.ca and editing by Ahmad Hathout atahathout@thewirereport.ca

Court nixing Que. site-blocking ‘helpful’ against FairPlay: advocates

News | 07/24/2018 5:59 pm EDT

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