In January, a coalition of Canadian companies called on the country’s telecom regulator CRTC to establish a local pirate site blocking program, which would be the first of its kind in North America.
The Canadian deal is supported by Fairplay Canada, a coalition of both copyright holders and major players in the telco industry, such as Bell and Rogers, which also have their own media branches.
Before making a decision on the proposal, the CTRC launched a public consultation asking the public for input on the matter. This has resulted in thousands of submissions, both before and against the plan.
Last week, just before the deadline passed, a noteworthy letter typed on a United Nations letterhead came in. The submission comes from David Kaye, acting as Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression.
Special Rapporteurs are independent experts who have a mandate from the Human Rights Council to report and advise United Nations members on threats and problems that arise. In this case, the letter warns against the Canadian site blocking plan.
According to Kaye, the website blocking plan threatens to violate Article 19 of The Universal Declaration of Human Rights. This article guarantees people’s freedom of “opinion and expression” through “any media” and “regardless of frontiers.”
The Special Rapporteur informs the CRTC that the blocking plan could violate Canada’s obligations under Article 19 in several ways. The first problem he highlights is proportionality. According to Kaye, website blocking is an extreme measure that is often too broad to tackle copyright infringement.
“While the enforcement of copyright law may be a legitimate aim, I am concerned that website/application blocking is almost always a disproportionate means of achieving this aim,” Kaye writes.
“The risk that online expression will be disproportionately restricted is particularly high for websites/applications that are implicated in copyright infringement but also widely used to protect personal identity and security, such as VPNs, proxy services and peer-to-peer networks.”
The Special Rapporteur also highlights that the proposed criteria for piracy sites are vague, which may lead to over-blocking. This could affect sites and services that also have significant non-infringing uses.
In addition, he also notes that the proposed plan lacks due process safeguards. This means that sites may be blocked solely based on allegations from copyright holders, without judicial oversight.
Finally, it’s pointed out that the website blocking plan requires ISPs to work with copyright holders. However, the Rapporteur notes that these Telcos also own major Canadian commercial television services, which makes it unclear if they can act as neutral gatekeepers.
All in all, the Special Rapporteur urges the CRTC to make sure that, if it adopts any blocking measures, these will be in accordance with Article 19 of The Universal Declaration of Human Rights. Given his summary, that is currently not the case.
“Website blocking is an extreme measure that should only be imposed when an independent and impartial judicial authority or adjudicatory body has determined that it is the least restrictive means available to end individual acts of copyright infringement.”
“The proposed website blocking regime raises concern that websites may be blocked in Canada based on insufficient evidence or misleading allegations of copyright infringement, through a process lacking necessary due process guarantees,” Kaye adds.
Now that the public consultation has ended the CRTC will review the thousands of responses, including this one. When that’s done, it is expected to release a final review on the proposal, which is expected to happen later this year.
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The submission of Special Rapporteur David Kaye, which hasn’t gone unnoticed, is available here (pdf).
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