Text: Small Text  Normal Text  Large Text  Larger Text
  • Columns
  • Federal Court Rules Internet Providers Not Broadcasters

Blog Archive

PrevPrevApril 2014NextNext
SMTWTFS
  12345
6789101112
13141516171819
20212223242526
27282930

Federal Court Rules Internet Providers Not Broadcasters

PDF  | Print |  E-mail
Monday July 12, 2010
Last year, the Canadian Radio-television and Telecommunications Commission released its new media decision, which addressed the prospect of increased CRTC regulation of Internet activities.  After days of hearings and thousands of pages of submissions, the Commission side-stepped the pressure to "do something," maintaining a hands-off approach and punting the most contentious issue - the prospect of a new levy on Internet providers to fund Canadian content - to the courts.

The Internet levy proposal received strong support from several Canadian creator groups, who argued that given the video content streamed online, ISPs should be viewed as broadcasters within the Broadcasting Act.  By treating ISPs as the equivalent of conventional broadcasters, they would be required to contribute to the Act’s policy objectives, which include promotion and support for Canadian content.  The ISPs unsurprisingly opposed the proposal, maintaining that they are mere conduits in the transmission of video content.  They argued the levy proposal was illegal since they are regulated under the Telecommunications Act as telecom companies, not broadcasters.

My weekly technology law column (Toronto Star version, homepage version) notes the two sides faced off at the Federal Court of Appeal earlier this year and last week a unanimous court sided with the ISPs, ruling that providing access to broadcasting is not the same as broadcasting.  It concluded that so long as ISPs maintain a content-neutral approach, they fall outside of the Broadcasting Act and should not be expected to play a role in promoting the policies found in the legislation.  

The court relied heavily on a 2004 Supreme Court of Canada decision that examined many of the same issues through the lens of copyright law.  In that case, the court was asked to determine whether ISPs could be forced to pay royalties for music communicated on their networks by subscribers.  Canada’s highest court said no, ruling "an Internet intermediary [who] does not itself engage in acts that relate to the content of the communication, but confines itself to providing ‘a conduit’ for information communicated by others" was not a communicator of the content and thus exempt from liability.

In considering whether ISPs can be treated as broadcasters, the court adopted a similar analysis, stating "a person whose sole involvement is to provide the mode of transmission is not transmitting the program and hence, is not ‘broadcasting’."

The case is a huge win for the ISPs and - subject to an appeal to the Supreme Court of Canada or a legislative change - puts an end to the ISP levy plan.  The immediate reaction from the creator groups seeking the levy suggested that both are possible, as some indicated they are examining grounds for appeal, while others took the decision to mean that a change to the law was now a necessity.

The ISPs were understandably elated at the decision, yet there was some cautionary wording from the court, which emphasized the ruling was conditional on ISPs remaining content-neutral. Should ISPs play a more active role, their ability to claim mere conduit status would be lost and their role re-assessed.

That language provided a helpful reminder that ISPs who violate net neutrality norms by engaging more directly in the content that runs on their networks run the risk of not only violating the Telecommunications Act, but also falling within the Broadcasting Act and facing a host of new rules and costs.  In light of this decision, the temptation to prioritize content may be tempered by the bigger costs that could come with turning an ISP into a broadcaster.  

Comments (11)add comment

Crockett said:

...
I am always encouraged by sane and reasonable rulings by our courts, which is not always the norm. I wonder what would happen if Bill C-32 were given the same treatment?
July 12, 2010

Eric L. said:

...
I'd love to see the CRTC try to regulate YouTube users for Canadian content, or users on any video-sharing site for that matter.

It all comes back to how you treat users. The "creators", or whoever is supposedly representing them, should be mindful of this fact.
July 12, 2010

Anon-K said:

Taking the creator's position to the extreme
Good on the Federal Court of Appeal. The next step, had this been allowed to go ahead, would have been a levy on religious institutions.

Why? Isn't God supposed to have created the air that serves as the conduit for the broadcasting? Using the ISP as a basis, then logically God would have been declared a broadcaster and therefore the churches would have been liable for a levy.

Of course, electromagnetic leakage from my TV would also be consider broadcasting, that that levy would be coming....
July 13, 2010

Jean Naimard said:

What's with “creators”???
What's with “creator groups”??? Why do they absolutely demand compensation at the expense of other industries???

What’s in their heads for them to believe that they are extra-special?

After all, they are just mostly entertainers, at par with street jugglers. Why should that group of people upheave existing law and practices???
July 15, 2010

mathew said:

...
What’s in their heads for them to believe that they are extra-special?

After all, they are just mostly entertainers, at par with street jugglers. Why should that group of people upheave existing law and practices???
October 31, 2012

mathew said:

October 31, 2012

Aliste said:

that's so funny
www.downjustforme.com
This is what exactly I was searching, the information was overall very useful for me, thanks a lot.
October 31, 2012

KevinTran said:

you're truly a excellent webmaster
"Hello there! This article could not be written much better! Going through this article reminds me of my previous roommate! He constantly kept preaching about this. I am going to send this information to him. Fairly certain he'll have a very good read. Many thanks for sharing! http://thebeewithwheels.com/"
December 20, 2012

Anonymous said:

Who is Anonymous ?
I am anonymous
January 28, 2013

Milk Cow said:

Vinamilk Vinamilk
I am electric. You are spirit. We are friends
February 20, 2013

Black Cow said:

Super man ?
it was so nice blog post, thank you for sharing i love your work.thanks
February 20, 2013

Write comment
smaller | bigger

busy
Tags:
, , ,
Share: Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterEmailPrintPDF
Related Items: