Regulation of New Media: Constitutional Law Framework

Regulation of New Media: Constitutional Law Perspective

The course examines new media through the lens of regulation, focusing on constitutional law.
The objective is to explore how governments regulate new media and the challenges posed.

New media, including radio, cable television, the internet, and social media, present challenges to governments at municipal, provincial, territorial, and federal levels.
These challenges involve industry regulation and the social uses of new media.
Governments often struggle to keep up with the rapid changes in technology and infrastructure.

Internet Service Provider (ISP) Liability: Determining whether ISPs should be liable for their subscribers' actions.

Sections 91 and 92 of the British North America Act 1867 (now the Constitution Act 1982) define the distribution of powers between provinces and the federal government.
These sections outline the legislative authority of each level of government.

Definition: Acting outside one's properly constituted legislative authority.
Example: A province attempting to regulate radio communication, which the federal government argues is exclusively federal jurisdiction.

The federal government argues that provinces acting in the area of broadcasting are acting ultra vires.
The federal position is that radio communication and broadcasting are exclusively federal responsibilities.

Provinces argue they have some jurisdiction to regulate radio broadcasting in certain instances.
However, the Supreme Court generally concludes that provinces do not have jurisdiction to regulate radio communication.

Section 91 of the Constitution Act outlines subjects under exclusive federal jurisdiction.
Example: Copyright law is exclusively federal; provinces cannot regulate copyright matters.

Section 92 grants exclusive legislative powers to provinces over specific subjects.
Example: Borrowing money on the sole credit of the province (Section 92, sub 3).

Section 92(10) (Local Works and Undertakings):
- Rule: Provincial jurisdiction over local works and undertakings.
- Exception: If a work or undertaking connects the province with others or extends beyond provincial limits, it falls under federal jurisdiction.
Section 92(13) (Property and Civil Rights):
- Provinces argue that broadcasting instruments (transmitters and receivers) fall under provincial jurisdiction due to property rights.
- The Supreme Court rejects this argument, stating the issue is not about ownership but the effects of these instruments.

The Radio Reference case involves two key questions submitted to the Supreme Court regarding jurisdiction over radio communication.
The focus is on whether the Parliament of Canada has the power to regulate radio communication, including transmission, reception, and apparatus.

In the 1920s, radio emerged as a significant medium with potential for education and nation-building.
However, unregulated airwaves led to jamming and the need for government intervention.

Canada was signatory to international conventions and treaties related to radio communication.
These agreements aimed to regulate frequencies and distribution of resources between countries.
The federal government argues that these international obligations necessitate exclusive federal jurisdiction.

Chief Justice Anglin presents the majority's reasons, emphasizing that the case is about the effects of radio communication instruments, not their ownership.
The court dismisses the provincial argument based on Section 92(13).

The court acknowledges that Hertzian waves and radio were unknown when the British North America Act was framed.
Therefore, explicit language covering radio communication is absent from the Act.

The court employs the "living tree" analogy, suggesting that the Constitution should be interpreted in a large, liberal, and comprehensive spirit to adapt to new realities.
The goal is to find a head of legislative jurisdiction within Sections 91 and 92 capable of including radio communication.

Section 92 lacks language broad enough to cover radio communication due to the uncontrollable nature of Hertzian waves.
Radio signals can cross provincial boundaries, undermining the concept of local undertakings under provincial jurisdiction.