Blacklock’s Reporter v Canada: Where Are They Now?

Editor’s note: Relationships with sources should prevent the fact or appearance of partiality – and this is about as partial as you can get. We are satisfied with the degree of disclosure and professionalism Alexander brings to his reporting. If you want more information, we encourage you to seek out additional case coverage.

Last year, my friends informed me that my parents’ legal battle against the Canadian government appeared in their Intellectual Property Law I curriculum. This was excellent news. It qualified mom and dad as Where Are They Now interview subjects. Not only is their case interesting, but also they were incredibly easy to track down.

Tom Korski and Holly Doan are the respective Managing Editor and Publisher for Blacklock’s Reporter, an online journal dedicated to “minding Ottawa’s business.” In 2013, they published a story detailing how Parks Canada signed a confidential agreement with the CBC to pay the network over $94,000 for TV coverage about them. A Parks Canada employee purchased a single Blacklock’s subscription; they circulated the password within the agency and encouraged its use to monitor stories featuring them.

Blacklock’s alleged this breached its Terms of Service as well as the Copyright Act’s prohibition of “obtaining, reading and distributing news articles without proper authorization.” In 2024, the Federal Court found in favour of the government, accepting that their use of the copyrighted material was fair dealing for the purpose of research. This fair dealing exception would not apply if the material was obtained through the circumvention of a technological protection measure (TPM). However, the Court also found password-sharing does not count as such a circumvention. This finding on TPMs was discussed in my peers’ textbooks, including the Court’s statement that Parks Canada “used the password licitly obtained for the purpose for which it was created.”

Tom answered questions on Blacklock's behalf. In Holly’s words, “we’re interchangeable!”

You have described Blacklock's as government accountability journalism. What does this mean, and why is it important?

Accountability journalism is the long, uphill climb through research and hidden documents for the secrets that show what a government does, not what it says. It is the reason protection of free expression, including news free from government regulation, has been the hallmark of viable societies for centuries. Without it, we are hostages to skullduggery with occasional visits by propagandists who will feed you with a cup and a spoon.

How have legal and IP experts reacted to the Federal Court's decision?

Reaction has been mixed. Lawyers without clients, primarily academics, celebrate password sharing as cost-saving for public institutions. Lawyers with actual clients – like creators – are horrified. But this is the old story of all property rights: those who have it, preserve it; those who don't, want it.

Why should Canadians care about the outcome of this case?

No publisher who relies on government aid can be free of government interference. That's why all independent publishers employ the same business model used by Canada's first newspaperman. John Bushell of the Halifax Gazette, circa 1752: sales of subscriptions. Password sharing is theft that kills the commercial viability of the business. No sales, no revenue. No revenue, no accountability journalism.

Blacklock’s appealed the case and is awaiting the Federal Court of Appeal’s decision following submissions in October of this year.