Business as usual for ISPs following SCC decision

The Supreme Court of Canada has essentially ruled that broadcasting via the Internet does not need to be regulated.

The top court was asked to rule on the appeal in Alliance of Canadian Cinema, Television & Radio Artists v. Bell Aliant Regional Communications LP following the Federal Court of Appeal’s decision that Internet service providers are not broadcasting within the meaning of the Broadcasting Act when they transmit programs via the Internet.

In upholding the Federal Court of Appeal’s decision, the top court wrote: “We therefore agree with Noël J.A.’s answer to the reference question, namely, that ISPs do not carry on ‘broadcasting undertakings’ under the Broadcasting Act when, in their role as ISPs, they provide access through the Internet to ‘broadcasting’ requested by end-users.”

The case arose after the Canadian Radio-television and Telecommunications Commission reviewed its new media exemption order under the Broadcasting Act. During the review process, the question of whether ISPs could be regulated was raised and the CRTC referred the case to the Federal Court of Appeal.

Prior to the reference, the CRTC heard proposals from cultural groups seeking to impose a levy on ISPs to fund the development of Canadian new media broadcasting content. ISPs, including Bell Canada and Rogers Communications Inc., opposed the levy, arguing that the CRTC doesn’t have jurisdiction to impose a levy since ISPs are not considered to be broadcasters under the Broadcasting Act.

“What this decision says is that an approach which seeks to raise funds or regulate an ISP under the Broadcasting Act isn’t an option,” says Leslie Milton, a communications law partner at Fasken Martineau DuMoulin LLP.

“The main implication is that an ISP that merely provides the mode of transmission or access to the Internet won’t be subject to regulation under the Broadcasting Act,” she adds. “At this point, because there is an exemption order under the Broadcasting Act for new media undertakings, the regulatory obligations are not very large.”

Milton says the ruling basically means “it’s business as usual for ISPs.” The ruling is consistent with current regulation of the Internet, which is limited, she says. And she doesn’t expect to see any changes to the Broadcasting Act any time soon to expand the regulation of ISPs.

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