Appeared in the Toronto Star on November 30, 2015 as Quebec’s Online Gambling Law Threatens Canada’s Open Internet

If there is a first rule of the Internet in Canada, it is “thou shall not block.” Canadian Internet service providers face a wide range of policies that have implications for accessing content including net neutrality rules and the copyright notice-and-notice system. Yet in virtually all cases, blocking or removing content is simply not done (the lone exception is a limited, private sector led initiative to block child pornography images).

Unlike other countries which have dabbled in mandated takedowns or Internet filtering, Canada has largely defended an “open Internet”. Canadian law does not mandate that Internet providers take down content due to unproven allegations of copyright infringement or allow them to alter or change content. In fact, the Telecommunications Act stipulates that “a Canadian carrier shall not control the content or influence the meaning or purpose of telecommunications carried by it for the public.”

Despite the clear legal mandate to avoid blocking, earlier this month the Quebec government introduced unprecedented legislation that would require Internet providers to engage in content blocking. The new bill targets unlicensed online gambling websites as part of the government’s efforts to increase revenues from its own online gambling service, which has thus far failed to meet expectations.

The provisions are contained in an omnibus bill implementing elements of the government’s spring budget, which included a promise to establish website blocking requirements. The bill provides that “an Internet service provider may not give access to an online gambling site whose operation is not authorized under Québec law.” The government’s lottery commission will establish the list of banned websites.

According to the law, Internet providers are required to block access to the banned sites within 30 days. Failure to comply with the law could lead to initial fines of up to $100,000 with higher penalties for repeat offenders.

The Quebec initiative seems certain to end up before the courts. First, the Canadian constitution grants exclusive jurisdiction over telecommunications to the federal government. The Quebec government has unsuccessfully challenged the jurisdictional issue in the past.

While it will likely argue that the website blocking is a matter of consumer protection which falls to the provinces (the rules will be placed in the Quebec consumer protection law), its stated purpose has little to do with protecting consumers. When the measure was first announced in the budget, the government noted that its own site was not meeting revenue targets and that it believed that website blocking would generate millions in additional revenue. In fact, the government’s own working group on online gambling recommended a licensing system for all sites over blocking as the best means of protecting consumers.

If the jurisdictional issues fail to convince the courts, a free speech challenge surely will. There is little doubt that the government-mandated blocking represents a limit on the fundamental freedoms found in the Charter of Rights and Freedoms. While those rights are not absolute, Quebec will face a difficult time arguing that the blocking is a reasonable limitation given the availability of alternatives that do not limit speech and might be more effective in protecting the public.

The no blocking approach has served Canadians well, ensuring universal access to the content of their choice. As Quebec seeks to undo the first law of the Canadian Internet, it opens the door to expanded content blocking initiatives, perhaps targeting websites that do not meet language requirements or are alleged to contain infringing content. If the bill becomes law, a legal challenge that brings together Internet providers, civil liberties groups, and consumer advocates is a must.

Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can be reached at mgeist@uottawa.ca or online at www.michaelgeist.ca.