Appeared in the Toronto Star on June 27, 2015 as Quebec Gambles With the Open Internet
For governments accustomed to wielding their power to regulate local activity, the Internet has long been a source of frustration. From music sites to Uber to AirBNB, online services represent an enormous challenge to conventional government regulation, which typically relies on a jurisdictional hook to compel compliance.
While most reputable global companies can ill-afford to simply ignore laws or court orders, there are still websites that operate largely beyond the reach of government regulation. In response, some governments have attempted to regulate online behaviour, ordering Internet providers to block access to offending websites.
Canadians have generally been spared website blocking initiatives due in part to the Telecommunications Act, which prohibits carriers from controlling “the content or influence the meaning or purpose of telecommunications carried by it for the public.” That rule means that Internet providers are effectively prohibited from unilaterally blocking content.
But what if a Canadian government ordered Internet providers to do so?
The federal government has refrained from mandating blocking (the closest it has come has been supporting a private sector initiative to stop access to child pornography images), but earlier this year the Government of Quebec announced plans in its budget to require Internet providers to block access to online gambling sites. The list of blocked sites will be developed by Loto-Québec, a government agency.
The budget states:
A legislative amendment will be proposed to introduce an illegal website filtering measure. In accordance with this measure, Internet service providers will not be allowed to provide access to an online gaming and gambling website whose name is on a list of websites that are to be blocked, drawn up by Loto-Québec.
The government apparently views this initiative as a revenue enhancing measure because it wants to direct gamblers to its own Espacejeux, the Loto-Québec run online gaming site. A November 2014 report found that Espacejeux was not meeting revenue targets since people were using other sites. The government believes that the website blocking will increase government revenues by $13.5 million in 2016-17 and $27 million per year thereafter.
The Quebec decision is particularly surprising given recent recommendations from its own working group on online gambling. It studied the state of online gambling in the province and concluded that the best approach was not to block access to other sites, but rather to invite them all into the market. The key recommendation:
the Working Group believes that in order to control the online gambling market, protect consumers and generate revenues for the government, the best solution for the government is to establish clear rules and open up the online gambling market to private operators. In fact, the best solution is to establish an online gambling licensing system.
Rather than opening the market though, Quebec is instead seeking to censor the Internet for its own commercial gain by ordering Internet providers to block access to any unregulated sites. The plan is likely face a legal challenge, both on free speech and jurisdictional grounds, since the federal government has exclusive jurisdiction over telecommunications regulation.
Since the announcement in April, there has been surprisingly little public commentary about the Quebec plan. Quebec-based Internet providers may have privately raised concerns, but consumer groups have remained largely silent. That needs to change, since Quebec’s plan to block access to gambling sites could easily expand to other areas.
Once blocking Internet content is established, it is easy to envision governments moving down a slippery slope, requiring the blocking of sites that are alleged to infringe copyright or blocking e-commerce sites that are not bilingual or do not pay provincial taxes. If that happened, the open Internet in Canada would be placed at risk of unprecedented government intervention into how Internet providers manage their networks and what sites Canadians are able to access.
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 firstname.lastname@example.org or online at www.michaelgeist.ca.
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