The Canadian Radio-Television and Telecommunications has spent the past
year-and-a-half trying to reinvent itself a pro-consumer regulator. On
the broadcast front, the most obvious manifestation of that approach is
the gradual move toward pick-and-pay channels, which seems likely to
emerge as a policy option later this year. Establishing mandated
pick-and-pay would be a political and consumer winner, but there are
still reasons for Canadians to vent against the regulator. The retention
of simultaneous substitution policies is one of them.
I made the case
for gradually eliminating the simultaneous substitution policy late
last year, arguing that the policy hurts Canadian broadcasters (by
ceding control over their schedules to U.S. networks) and Canadian
content (which suffers from promotion). Moreover, simultaneous
substitution will become less important over time as consumers shift
toward on-demand availability of programs. There are still supporters of
simultaneous substitution, but few come from the consumer community.
Indeed, even the CRTC is hard-pressed to identify consumer benefits in
its FAQ on the policy. In fact, its Super Bowl commercial FAQ claims viewers benefit from signal substitution during the broadcast, but the Commission can't seem to identify any benefits.
Read More ...
TagsShareTuesday January 28, 2014
Given the lack of consumer interest in, and occasional hostility
toward, simultaneous substitution, the policy represents a problem
for the CRTC's pro-consumer orientation. With that background in
mind, last week CRTC Chair Jean-Pierre Blais wrote
to Rogers to complain about the company's Twitter response to a
customer complaint about simultaneous substitution. When a customer
complained about the CTV substitution of the Fox feed of the NFC
Championship (Go Hawks), the company noted that "it's due to the
CRTC rules so no way to watch the Fox feed sorry."
After stating that he was dismayed to read the Rogers response,
There is an important distinction to be made between authorizing
broadcasters to substitute signals and forcing them to do so. As I
said at the 2013 Prime Time in Ottawa conference, the time has
come for broadcasters and distributors to start speaking up on
simultaneous substitution rather than simply passing blame onto
There are several problems with Blais' letter. First, the
Rogers response isn't inaccurate. The viewer is unable to view the
Fox feed due to the Canadian broadcaster (CTV) using the
simultaneous substitution regulations created by the CRTC. The
broadcast distributor (Rogers) is required by licence to abide by
the simultaneous substitution request. The entire simultaneous
substitution system is a regulatory creation of the CRTC and
attempts to distance itself from it are misleading. Second, Blais' prepared
remarks at the 2013 Prime Time conference
did not say that it
was time for broadcasters and distributors to speak up on
simultaneous substitution (perhaps remarks after the speech did).
The speech contained one reference to simultaneous substitution, but
there was no urging of broadcasters and distributors to speak out on
the issue. [Update: the CRTC
points out the Blais went off script
to urge broadcasters and broadcast distributors to stop blaming the
CRTC for simultaneous substitution].
Third, it is odd to see the CRTC Chair exhorting broadcasters and
broadcast distributors to speak out in favour of simultaneous
, the Commission's "Let's Talk TV" consultation is
"open to any suggestion, question or idea you want to bring
forward." Is the Commission open to removing the simultaneous
substitution rules? Or is it merely looking for cover from
broadcasters and broadcast distributors on a policy that is not
well-liked by many consumers and which ultimately provides less
choice by creating Canadian networks that mirror their U.S.
counterparts during prime time? If the CRTC wants to retain the
unpopular policy, it should own it, not try to pass the
responsibility for public support to broadcasters and broadcast
Rogers' executive Rob Bruce in 2012
on changes to Canadian foreign investment rules that removed
restrictions for companies with less than ten percent of the market:
“Our view is 'bring it on. As far as competition goes, we've always
been a full-speed-ahead competitor and we're ready to go with whoever
comes to market.”
Rogers' CEO Nazr Mohamed in 2013 on Canadian wireless foreign investment rules:
Mohamed repeated that Rogers favours opening foreign investment for
large telecom players too, which can't be more than one-third foreign
owned. "If the Canadian government decides to open up foreign ownership,
it should open it up for everybody," he told reporters later.
Rogers Deputy Chair Edward Rogers yesterday on Canadian foreign investment rules:
It's a complex topic but I think our view is as Canadians we better
really study and understand what that is before we do it, because the
model we have now, I believe, allows Canadians to have the best wireless
industry, the best cable industry, and some fantastic media assets in
Canada. And I personally don’t want to just sell that. So, the
shareholders maybe the richest executives enjoy that. But we have the
hollowing out of Canada after that. I don't think there's any formula
where any of these companies are own outside of Canada and they do
better for customer. I think there is a lot you could argue that if we were a branch plant that Canada would be last.
TagsShareFriday January 24, 2014
Graham Henderson, the head of the Music Canada (formerly the Canadian Recording Industry
Association) wrote a blog post
late last year lamenting musicians' earnings, a situation he blames
on the Internet allowing a few to "amass staggering, unprecedented
wealth" while musicians toil for tiny incomes. Leaving aside the
facts that the Canadian music industry experienced increased
digital sales last year (while sales declined
in the U.S.) and that the Ontario government is handing out tens
of millions of tax dollars to the industry, Henderson now says
the government needs to step in and regulate the Internet. According
to Music Canada, government support must be complimented by:
judicious and reasonable regulation of the internet. The actions
taken by courts in other jurisdictions have very reasonably
required ISPs to block websites that are almost entirely dedicated
to the theft of intellectual property.
In fact, Internet regulation and blocking websites are not the only music industry target. Last week, Music Canada appeared before the Ontario Standing Committee on Finance and Economic Affairs, where it cited Google as a problem:
Read More ...
the federal government has done a lot to help us in our battle
against illegal sources, but they could certainly do more. One of
the biggest problems we have is that consumers cannot find legal
services on Google. Type in: "Carly Rae Jepsen"; pick your song;
press “search.” You would have to look to page 7 of the results to
find iTunes. Before you get there, you have six and a half pages
littered with illegal sites which are constantly being taken down
and constantly being put back. With government support, maybe we
can urge intermediaries to actually do something to help consumers
find legitimate sources, because I think they’d like to.
TagsShareWednesday January 22, 2014
I tried replicating
Henderson's claims regarding Google and arrived at much different
results. Searching for Carly Rae Jepsen and the song Call Me Maybe,
the very first result was a music video posted by Jepsen's label
which receives royalties and has a link to the iTunes version for
purchase. Other top results include Jepsen's own website (with links
to iTunes sales of her songs) and licensed streaming versions of the
song, which all appear before "infringing sites."
With digital sales on the rise in Canada and copyright reform now
complete, regulating the Internet, blocking websites, and
manipulating search results is the last thing government's should be
mandating. Yet it seems that is precisely what the music industry
once again has on its mind.
Among the many Internet success stories of the past two decades,
Google stands alone. The undisputed king of search, hundreds of
millions rely on it daily, supporting an Internet advertising
business model that generates tens of billions of dollars annually.
My weekly technology law column (Toronto
Star version, homepage version) notes that kind of success
invariably leads to legal and regulatory issues, though most of
Google's legal fights have focused on content, such as the inclusion
of controversial websites in its search index, the digitization of
millions of books through its book search initiative, and the
removal of links that may lead to websites that host infringing
Read More ...
TagsShareTuesday January 21, 2014
Until recently, Google's Internet advertising business model has,
with a few notable exceptions (including a large U.S.
involving pharmaceutical advertising), been spared
much regulatory scrutiny. That has started to change with high
profile actions in the U.S. and European Union and the prospect of
similar investigations in Canada.
In the U.S., the Federal Trade Commission conducted a two-year
investigation into Google's business practices that wrapped up last
year with a settlement
featuring several commitments for business practice changes. The
settlement stopped short, however, of finding anti-competitive bias
in Google's search results.
While the U.S. settlement was widely viewed as a win for Google,
European regulators are conducting their own investigation and may
demand greater concessions. In fact, European officials recently warned
the company that time is running out to settle claims of abuse of
its dominant position.
The U.S. and European Union may have been active on the Google
front, but Canadian officials have generally remained on the
sidelines. The federal privacy commissioner has examined
privacy-related issues, with action involving Google
(its popular street-level mapping service) and Google
, but broader investigations into the company's business
model have been largely absent.
That too is changing, as in recent months both the Competition
Bureau and the federal privacy commissioner have either launched or
concluded investigations involving Google's business model. Both
investigations were complaint-driven, suggesting that competitors or
disgruntled users may increasingly turn to those regulatory bodies
to address their concerns.
mirrors the actions in the U.S. and
Europe. According to court
filed in December, the Bureau has worked with
Google's competitors to identify the information the company should
be ordered to disclose as part of a competition law investigation.
Last month, the Federal Court of Canada issued an order mandating
disclosure of information related to the company's business
activities, which the complainants claim rise to the level of
The investigation remains at an early stage with no indication that
the Bureau is close to reaching a conclusion. However, the Bureau's
interest in Google indicates that the company is now firmly on the
Canadian radar screen and competition watchers will be looking
closely to see whether Canada follows the U.S. example or adopts the
more aggressive European approach.
The federal privacy commissioner has also waded into Google's
business model. Last week, the office concluded an investigation
into online behavioural advertising that arose from a complaint by a
Google user who was uncomfortable with health-related targeted
advertisements that suggested his Internet usage was being tracked.
After he searched for medical devices for sleep apnea, he began
receiving advertisements on random sites for the devices.
The reality is that website usage is tracked, hence the mounting
demands for do-not-track legislation that would provide users with
greater control over the data generated by their Internet
activities. In this case, the privacy commissioner concluded
that the advertising breached Canadian privacy law as the tailored
advertisements involved sensitive information that required an
explicit opt-in consent.
Google agreed to several changes in response to the finding,
including increased monitoring of its advertising programs to ensure
compliance with company policies and the law. Given the heightened
interest from Canadian regulators, the company is apparently no
longer alone in the monitoring of its advertising practices and
Later this morning, U.S. President Barack Obama will give a speech on U.S. surveillance activities in which he is expected to establish
new limitations on the program. While the measures will likely fall
well short of what many believe is necessary, it is notable that the
surveillance issue has emerged as a significant political issue since
the Snowden leaks and the U.S. government has recognized the need to
Reaction to the Snowden leaks in the U.S. has not been limited to political responses. In recent months, Verizon
and AT&T, the two U.S. telecom giants, announced plans to issue
regular transparency reports on the number of law enforcement
requests they receive for customer information. The telecom
transparency reports come following a similar trend from leading
Internet companies such as Google,
The U.S. reaction stands in stark contrast to the situation in Canada.
Canadian government officials have said little about Canadian
surveillance activities, despite leaks of spying activities, cooperation with the NSA, a federal court decision that criticized the intelligence agencies for misleading the court, and a domestic metadata program which remains shrouded in secrecy. In fact, the government seems to have moved in the opposite direction, by adopting a lower threshold for warrants seeking metadata than is required for standard warrants in Bill C-13.
Read More ...
TagsShareFriday January 17, 2014
Moreover, Canada's telecom companies remain secretive about their
participation in the surveillance activities, with no transparency
reports and no public indications of their willingness to disclose
customer information without a court order. With the U.S. telcos now
on board, the telecom
in Canada has become particularly noteworthy.
Under Canadian law, Canadian telecom companies and Internet
providers are permitted to disclose customer information without a
court order as part of a lawful investigation. According to data
obtained under Access to Information, we know that the RCMP has
successfully obtained such information tens of thousands of times.
Moreover, Bill C-13, the so-called "cyberbullying" bill includes a
provision that is likely to increase the number of voluntary
since it grants telecom companies and ISPs
complete immunity from any civil or criminal liability for such
Canadians deserve to know more about government surveillance
activities, more about whether Canadian oversight is sufficient, and
more about how companies such as Bell, Rogers, and Telus handle
their personal information. This includes how many requests they
receive for subscriber information, the reasons for the requests,
how often they comply without a warrant, and how often they require
court oversight before disclosing the information. The shameful
Canadian surveillance silence - from both government and the telecom
sector - must end with an open conversation about Canadian
activities and whether current law strikes the right balance.
Earlier this week, I posted
on how Canadian law already features extensive rules that can be used
to target cyberbullying, which raises questions about the prime justification
for Bill C-13 (the cyber-bullying/lawful access bill). That post attracted a response from the Department of
Justice, which (consistent with politicians and other officials) points to a June
2013 report on cyberbullying from federal and provincial
justice ministers as the basis for Bill C-13.
While the government seems to think the report provides a solid
foundation for its bill, the reality is that the justification in
the report for the lawful access provisions stands on very
Read More ...
TagsShareThursday January 16, 2014
First, the report offers practically no evidence to support the
contention that the new lawful access provisions are needed. The
report features extensive discussion on intimate images, but there
is no substantive analysis on the need for lawful access provisions.
Rather, the report recommends the lawful access provision by simply
stating as fact that the current law is insufficient to meet the
demands of cyber-investigations without actual evidence presented to
support this statement. For example, the report claims that new
preservation orders are needed for ISPs to preserve data that might
otherwise be deleted, but no evidence is presented that data
deletion has posed an investigative problem.
Second, the report does not specifically recommend that the new
warrants carry the lower
found in Bill C-13. Rather, it merely recommends the
creation of new investigative tools in which "the level of
safeguards increases with the level of privacy interest involved."
The government seems to have assumed that metadata has a lower
privacy interest, yet the Supreme Court of Canada reached the
opposite conclusion last year in R.
, specifically citing to the privacy interests associated
with the metadata. In fact, given the significant privacy interest
associated with metadata and location information, Bill C-13 fails
to meet the standard that even the Justice report seems to envision.
Net neutrality has been one of the defining Internet policy issues of
the past decade. Starting with early concerns that large telecom and
Internet providers would seek to generate increased profits by creating a
two-tier Internet with a fast lane (for companies that paid additional
fees to deliver their online content quicker) and a slow lane (for
everyone else), the issue captured the attention of governments and
My weekly technology law column (Toronto Star version, homepage version) notes that while the net neutrality challenges evolved over time, the core question
invariably boiled down to whether Internet providers would attempt to
leverage their gatekeeper position to create an unfair advantage by
treating similar content, applications or other services in different
Read More ...
TagsShareWednesday January 15, 2014
In response, net neutrality rules surfaced that were designed to
safeguard online competition. Countries such as Chile
and the Netherlands
included net neutrality requirements within their telecom laws,
while others developed regulatory guidelines and principles. In
Canada, the Canadian Radio-television and Telecommunications
Commission established the Internet
traffic management practices
in 2009, which serve as the
Canadian net neutrality rules.
Concerns over net neutrality may have receded once policies were
established, yet Internet providers continued to search for business
models that could generate incremental revenues from their networks.
Having failed to establish a two-tier Internet based on speed, they
now appear to be focused on an alternative two-tier approach based
on data usage.
The premise of a two-tier Internet based on data usage stems from
the proliferation of data caps among many providers, particularly
for fast-growing wireless Internet services. The days of
"unlimited Internet" are over at many providers, replaced by
packages that include a fixed amount of data usage each month with
expensive overage charges for those that exceed their monthly
Sensing consumer frustration with data caps, network providers have
begun to offer access to some services or content that does not
count against the monthly cap. The result is a new two-tier
Internet: one Internet that counts against the monthly data cap and
another that does not.
For example, last week AT&T, one of the largest U.S. Internet
wireless providers, unveiled plans to offer "Sponsored
", which will allow websites and content owners to
essentially pay for users to access their content. Subscribers will
access sponsored data in the same manner as other content through
AT&T's wireless Internet service, but it will not count against
the user's monthly cap.
AT&T argues that the plan does not run afoul of U.S. net
neutrality rules since all content is delivered at the same speed
(those rules were called into question in a legal
yesterday). Yet the change creates a two-tier
Internet with obvious advantages for deep-pocketed content providers
who can promote their services as "data-free", while potentially
superior start-up services become perceived as costlier
Canadian providers have also begun to examine how data caps can be
used to differentiate between content. For example, Bell offers a $5
per month mobile TV service that allows users to watch dozens of
Bell-owned or licensed television channels for ten hours without
affecting their data cap. By comparison, users accessing the same
online video through a third-party service such as Netflix would be
on the hook for a far more expensive data plan since all of the data
usage would count against their monthly cap.
The Bell plan is currently the subject of a complaint
before the CRTC, which maintains that Bell's practices violate the
Commission's net neutrality rules by treating similar content in an
unequal manner. The complaint will be addressed in the coming
months, but regardless of the outcome, it is increasingly clear that
there is a new front in the net neutrality fight with Internet
providers intent on leveraging data usage to create a two-tier
The federal government's spectrum auction starts today with its wireless strategy in tatters. Late yesterday, Wind Mobile announced
that it was withdrawing from the auction, creating a new entrant vacuum
that seems likely to leave some of the prime spectrum in major markets
such as Ontario, Alberta, and British Columbia unlicensed and the hope
for a renewed competitive wireless environment all but dead. Indeed, the
marginal competitive gains of the past few years are now at risk and
the government's vision of four strong competitors in every market looks
like a pipe dream. The big three managed to scare off Verizon, while
the federal government's mixed messages on foreign investment appears to
have kept everyone else out.
Having made wireless competition a key policy priority - supported by a
national advertising campaign and commitments in the Speech from the
Throne - Industry Minister James Moore has little choice but to pursue a
different strategy. The government had placed its bets on improving the
competitive environment organically through foreign investment and new
entrants. With that strategy a failure (a government spokesperson claimed
the auction will still be positive for consumers but made no reference
to improved competition), it is time to focus instead on regulatory solutions.
The move toward regulated domestic roaming represents a starting point
(and presumably Wind Mobile's best hope given its lack of spectrum), but
more will be needed.
Removing all foreign investment restrictions, establishing a regulated
mobile virtual network operator market, and even considering structural
separation are some of the regulatory choices still available.
If the government still believes that a competitive wireless environment
remains a crucial economic concern, it cannot simply sit back as the
big three carriers solidify their dominance in the upcoming spectrum
auction and the prospect of viable competitors steadily disappears. The
government should complete the spectrum auction and then move quickly to
address the wireless mess with a strategy supported by targeted
regulatory reform.TagsShareTuesday January 14, 2014
Cyberbullying was in the news last week with Justice Minister Peter
C-13 could pass by the spring. The reaction to the bill - the
government's lawful access/cyberbullying legislation - has generally
included criticism over the inclusion of lawful access provisions
from Bill C-30 along with assurances that the cyberbullying
provisions are important and worthy of support (though experts in
the field doubt
whether it will stop online taunting). I discuss the dangers associated with Bill C-13 in this interview on TVO's The Agenda.
Conservative MPs unsurprisingly point to the need to protect children
from cyberbullying. For example, Conservative MP John Carmichael told
the House of Commons:
Read More ...
Mr. Speaker, I am a parent and a grandparent. I have concerns
about my children in this day and age of technology. I have
watched my three-year-old grandson navigate through an iPad, and I
do not have any idea how he moves through the technology. Clearly,
in today's world there is so much access to different types of
attacks on our children. Obviously, entertainment is one thing
that we want our children to have, but I think we also have to be
wise in what we allow them to watch or see.
TagsShareMonday January 13, 2014
Clearly, there are elements who take advantage of our
children and our grandchildren in this world. We have all heard
horrible stories. A member spoke earlier about a resident in his
community who committed suicide, with no hope, feeling perhaps
that her life had been ruined. This bill brings hope to all
Canadians. It brings us an opportunity to put regulation and
legislation in place that will protect our children and our
grandchildren from those who would take advantage of them. I think
it does exactly what it was intended to do when the Minister of
Justice introduced it.
Beyond protecting children and grandchildren - something we all
agree upon - the Conservatives frequently point to a June
on cyberbullying from federal and provincial
justice ministers as the basis for Bill C-13.
Yet despite the claims that Bill C-13 is needed to address
cyberbullying, the reality is that report found that the Criminal
Code already addresses most cyberbullying issues. As the report
There is no specific provision in the Criminal Code for
cyberbullying, or even bullying more generally. Bullying captures a wide range of behaviour, most
of which does not amount to criminal conduct, for example, name calling, teasing,
belittling and social exclusion. However, when the bullying behaviour reaches the level of criminal
conduct, the Criminal Code contains several provisions that can address this behaviour.
Depending on the nature of the activity involved, a number of
Criminal Code offences may apply to instances of bullying or
- criminal harassment (section 264)
- uttering threats (section 264.1);
- intimidation (subsection 423(1)),
- mischief in relation to data (subsection 430(1.1));
- unauthorized use of computer (section 342.1);
- identity fraud (section 403);
- extortion (section 346);
- false messages, indecent or harassing telephone calls
- counselling suicide (section 241);
- defamatory libel (sections 298-301);
- incitement of hatred (section 319); and,
- child pornography offences (section 163.1);
The report identifies several additional provisions that may be
applicable. The resulting substantive recommendations are very
limited, namely an expansion of the harassment provisions and
removing costs in libel cases.
The report also recommends a new provision on the non-consensual
distribution of intimate images, however, it acknowledges that this
issue extends far beyond cyberbullying and "there is limited data on
the extent and the nature of this activity." Moreover, the report
notes the Criminal Code can be used in some cases: images of persons
under the age of 18 would qualify under the child pornography rules,
while provisions on voyeurism, obscene publication, criminal
harassment, and defamatory libel may also be used. As David Fraser notes
the failure of high profile cyberbullying cases in Canada lies with
police and prosecutorial failure to use the laws that were readily
available, not in the absence of laws that can be used to combat
Earlier this week I appeared on TVO's The Agenda with Steve Paikin to discuss Bill C-13. While Justice Minister Peter MacKay indicated
yesterday that he hopes to pass the legislation this spring, the
discussion on the show points to the concerns with the bill including
how it creates immunity for voluntary disclosure of personal information without court oversight (thereby increasing the likelihood of such disclosures) and establishes a low threshold
for warrants involving metadata, while only marginally addressing the
legal framework to combat cyberbullying, which is already well
developed. The interview is embedded below.Read More ...
TagsShareFriday January 10, 2014