Federal Court grants dynamic site blocking order to address piracy of live NHL broadcasts

In what Justice William Pentney called an unprecedented case in Canada, the Federal Court has granted a dynamic site blocking order which requires internet service providers (ISPs) to block the IP addresses of sites involved in the piracy or unauthorized streaming of the live National Hockey League (NHL) games.

In Rogers Media Inc. v. John Doe 1, 2022 FC 775, Rogers Media and its co-plaintiffs own copyright for live broadcasts of the NHL games in Canada. They claim that, despite their efforts, unknown persons have been unlawfully distributing these broadcasts.

Instead of cutting off the source, Rogers sought an interlocutory injunction against several ISPs who control the vast majority of internet access in Canada. This “site blocking” order aims to prevent people in Canada from accessing the infringing content.

Rogers raised a recent precedent in Teksavvy Solutions Inc. v. Bell Media Inc., 2021 FCA 100, which upheld a site-blocking order. However, the order in the Teksavvy case can be properly characterized as “static” since it enumerated a specific number of sites to be blocked, and additional sites must be added by court order.

In contrast, the order sought by Rogers is a “dynamic” site-blocking order, which involves “trying to follow and block the unlawful streaming sites as it moves.”

The court found that Rogers met the test for interlocutory injunction.

Serious issue and irreparable harm

There was a serious issue to be tried, as there was persuasive evidence of infringement and irreparable harm. Despite increased efforts, the evidence showed an ongoing and substantial unlawful streaming of the broadcasts.

As for the balance of convenience analysis, the court found that it favoured granting the injunction.

Rogers proposed that Friend MTS Limited, having provided a similar service in other jurisdictions, monitor the broadcast from start to finish, identify unauthorized live streams, and create a list of the associated IP addresses. This list would be regularly updated and accessible by the ISPs for blocking. Various measures would also be implemented to not only prevent “over-blocking” or preventing access to legitimate content but also would result in “under-blocking.”

While ISPs raised issues on the complexity of implementing the order, the court nevertheless found that each ISP was capable of implementing the order, albeit each with its limits. Given the unprecedented nature of the order, the court set reimbursement at a maximum of $50,000.

Freedom of expression and net neutrality

The court found that possible “over-blocking” resulting from the order will inevitably affect both the Charter-guaranteed freedom of expression and net neutrality, which is the principle that all traffic on the internet should be free from manipulation.

However, the court said that any potential infringement of freedom of expression caused by over-blocking was limited, proportionate, and justified. Also, net neutrality should not prevent the limited blocking order, and the safeguards imposed sufficiently protect net neutrality, said the court.