Federal Court Of Canada Issues Dynamic Site Blocking Order To Prevent Unauthorized NHL Streams

On May 27, 2022, the Federal Court of Canada (the Court), in Rogers Media Inc. v John Doe 1, 2022 FC 775, issued a “dynamic” site blocking Order preventing access to streaming servers that provide unauthorized streams of National Hockey League (NHL) games in real time. This ruling represents the first dynamic site blocking order granted in Canada.

The Plaintiffs, including Rogers Media Inc., Bell Media Inc., and Group TVA, are Canadian entities that own and operate several television stations and online subscription services in Canada.  They own copyright for live broadcasts of NHL games in Canada.  The Plaintiffs claim that the unknown Defendants are unlawfully broadcasting NHL games to individuals in Canada, in breach of their copyright.

As a result, the Plaintiffs sought a dynamic site blocking Order, requiring Third Party Respondent Internet Service Providers (ISPs) to block IP addresses that host copyright-infringing pirate streams of live NHL broadcasts.  The Plaintiffs referenced a recent precedent, Bell Media Inc v GoldTV. Biz, 2019 FC 1432, aff’d 2021 FCA 100 (GoldTV), in which the Court issued a “static” site blocking Order where a specific number of sites were blocked with new sites being added only by order of the Court.  The Plaintiffs claimed that the type of order issued in GoldTV would not work in this case because pirates have adopted new measures to avoid detection and defeat site blocking, such as moving their infringing content from site to site regularly. Thus, Court approval prior to each blocking step would be impossible as they would need to be blocked while the broadcast is underway.

Some of the Respondent ISPs objected to the Plaintiffs’ claims, stating that an injunction would impose undue risks, practical difficulties, and additional costs to the ISPs which would be unfair.

After consideration of the “Cartier factors” set out in a UK case and later endorsed by the Federal Court of Appeal in GoldTV for assessing whether a blocking Order should be granted, the Court ruled that the Plaintiffs established a strong prima facie case that the Defendants were engaging in ongoing breaches of their copyright in the broadcasts of live NHL games.  The Court noted that it was clear that the Plaintiffs would suffer irreparable harm if the Defendants continued to live stream NHL games.  However, the Court also recognized that certain measures should be imposed to minimize the risk of over-blocking of legitimate content and to reduce the burdens imposed on the ISPs.

The Court issued a dynamic site blocking Order directing the Respondent ISPs to block access to certain IP addresses identified in real time during NHL hockey matches.  The injunction contained certain conditions, to balance the interests of the Plaintiffs with the concerns of the Respondents and the public.  The terms of the Order included:

1. the Order is limited to the 2021-2022 NHL season;
2. the ISPs only have to block streams in which they have the technical capacity to do so;
3. the Plaintiffs would indemnify (to a capped amount) the ISPs for costs they incurred complying with the blocking order; and
4. the Plaintiffs must retain an independent expert to ensure the blocking is carried out in line with the Court’s orders.

Summary By: Victoria Di Felice