Reference Re Broadcasting Act

This lecture concludes the section on governmental regulation challenges in new media, focusing on the transition from radio to cable television and the Internet.
The discussion revolves around the jurisdictional conflicts between federal, provincial, and territorial governments concerning broadcasting mediums, rooted in the interpretation of sections 91 and 92 of Canada's constitution.
The primary goal is to explore the fundamental challenges new broadcasting mediums pose for governmental regulation.

The lecture will engage with questions related to broadcasting regulation, specifically within the context of the Broadcasting Act.
The emphasis is on the interpretation of definitions, particularly "broadcasting" and "broadcasting undertaking," as outlined in the Broadcasting Act.
Definitions matter significantly in regulating broadcasting and new mediums like the Internet, necessitating a clear understanding of these terms.

The central question is whether Internet service providers (ISPs) in Canada should be subject to the Broadcasting Act.
This issue was brought to the Supreme Court through a reference decision by the Federal Court of Canada.
The lecture will examine the parties involved in the reference, including the CRTC (Canadian Radio-television and Telecommunications Commission).

The appellants, including the Alliance of Canadian Cinema, Television, and Radio Artists, advocate for the subjection of ISPs to the Broadcasting Act.
This subjection would impose responsibilities and obligations on ISPs, potentially benefiting entities like the Directors Guild and Writers Guild of Canada through royalties.
Respondents, such as Bell Alliant Communications and Telus, are major players in Canada's telecom industry and provide Internet services.
The CRTC, whose initial interventions led to the reference, was granted standing to appear before the Supreme Court.

The lecture focuses on the intersection of broadcasting and the Internet within communications law, emphasizing that Internet communications constitute a form of broadcasting.
Understanding the definitions of "broadcasting undertaking" and "broadcasting" is crucial, as these terms must be interpreted in the context of the Broadcasting Act.

ISPs provide end-users with access to broadcasting over the Internet.
The question is whether ISPs act as broadcasters when providing this access.
Answering this question requires understanding the definition of "broadcasting" in the Broadcasting Act and examining the services ISPs provide to subscribers.

The CRTC referred the question of whether ISPs carry on broadcasting undertakings to the Federal Court of Appeals.
The judgment of the Federal Court of Appeal was then appealed to the Supreme Court of Canada.

The reasons for judgment argue that an ISP functions as a broadcaster if it exerts control over broadcasting content.
Conversely, if an ISP is content-neutral and merely provides the means of accessing the Internet and its broadcasting content, it is not considered a broadcaster.
Content-neutral ISPs are not subject to the Broadcasting Act.

The Supreme Court dismissed the appeal, ruling in favor of the telecommunications firms.
The court held that the terms "broadcasting" and "broadcast undertaking," as interpreted in the Broadcasting Act, do not apply to entities that merely provide the mode of transmission.
The Broadcasting Act assumes broadcasting undertakings have some measure of control over programming, focusing on content-related policy objectives.

Content providers rely on ISPs to deliver their content to end-users.
ISPs acting solely in this capacity do not select, originate, or package programming services.
This distinction is important in determining whether an ISP is engaged in broadcasting undertakings.

The Supreme Court agrees with Justice Noel of the Federal Court of Appeal that the terms "broadcasting" and "broadcasting undertaking" do not apply to entities that merely provide the mode of transmission.
Section 2 of the Broadcasting Act defines broadcasting as any transmission of programs by radio waves or other telecommunications for public reception.
The act assumes broadcasting undertakings have some control over programming and journalistic, creative, and programming independence.

The policy objectives listed in section 3(1) of the Broadcasting Act focus on content, such as cultural enrichment, promotion of Canadian content, and ensuring diversity in programming.
ISPs do not engage with these policy objectives when merely providing the mode of transmission to access Internet content.

ISPs provide Internet access to end-users but do not participate in the selection, origination, or packaging of content.
This content-neutral role is key to distinguishing ISPs from broadcasting undertakings.

The lecture references historical cases, such as the Bell Telephone case (1891) and SOCAN vs. CAPE (2004), to illustrate the interpretation of key terms and the liability of Internet service providers.
In SOCAN vs. CAPE, the court concluded that ISPs merely act as a conduit for information and cannot be held to communicate that information themselves.

The Capital Cities case (1978) is discussed but distinguished from the current case.
In Capital Cities, cable television companies were exerting control over content by deleting and substituting advertisements in American broadcasts.
The Supreme Court does not believe Capital Cities assists the appellants in the current case, as ISPs have no ability to control the content of programming over the Internet.

The lecture emphasizes that Internet service providers are not engaged in the policy objectives listed under section 3(1) of the Broadcasting Act.
These providers are not exerting control over the broadcasting content available on the Internet that their end-user subscribers can access.
Dismissing the appeal, the Court makes it clear, that when functioning in a content-neutral fashion that ISPs are not broadcast undertakings and thus aren't subject to the said act.