Breaking New Ground in Intellectual Property Law: Teksavvy & Site-Blocking Orders

by Maxine Salazar and Nicole Shouldice (1L Law Students, UCalgary)

On May 26, 2021, the Canadian Federal Court of Appeal (FCA) in TeksavvySolutions Inc v Bell Media Inc issued a landmark decision affirming the validity of site-blocking orders to remedy copyright infringements [1]. The remedy compels third party internet service providers (ISPs) to block access to the defendant’s internet and sites containing copyright infringing material. For operating an unauthorized subscription service, the Federal Court issued a site-blocking order against GoldTv Services, the first mandatory interlocutory injunction of this kind in Canada. Teksavvy Solutions Inc. (Teksavvy), a third-party ISP, failed to comply and challenged the Federal Court’s jurisdictional basis of the site-blocking Order [2].

The FCA dismissed the appeal, affirming the Federal Court’s jurisdiction. The FCA found no legal obstacles to granting the Order existed on the basis of Sections 4 and 44 of the Federal Courts Act and subsection 34(1) of the Copyright Act [3]. Teksavvy’s right to freedom of expression is not engaged as its purpose is to provide its customers with access to specific websites. Further, while the role of an ISP requires neutrality and prohibits controlling or influencing the content or purpose of sites, complying with a court-ordered injunction is not tantamount to a violation of neutrality. The Appeal Judge ruled that the Federal Court’s decision was just and equitable as the balance of convenience favored compelling third party ISPs to comply with court orders in remedying copyright infringement.

This decision opens new doors for intellectual property law, expanding the scope under which third parties can be called upon to assist in combating copyright infringements [4]. This ruling affirms the availability of site-blocking orders and the courts’ ability to issue such unprecedented orders. Additionally, it initiates further legal conversation regarding the conflict between the Charter of Rights and Freedoms [5] and protecting intellectual property rights. We can expect to see these novel problems increasingly arise in intellectual property litigation. Furthermore, this could impact ongoing consultations on modernizing the Copyright Act - specifically legislative changes to include a “no-fault” provision.

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[1] Teksavvy Solutions Inc v Bell Media Inc, 2021 FCA 100.

[2] Ibid.

[3] Ibid.

[4] “Site unseen: Federal Court of Appeal upholds new injunctive remedy”, (June 4, 2021), MacDonald, K, Open Media, online: <https://www.nortonrosefulbright.com/en-ca/knowledge/publications/23507eae/site-unseen-federal-court-of-appeal-upholds-new-injunctive-remedy>

[5] Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.