SCC: ISPs are not “Broadcasters”

In a short ruling by the Supreme Court of Canada today (Reference re Broadcasting Act, 2012 SCC 4), it was held that Canadian Internet Service Providers are not “broadcasters” under the Broadcasting Act, S.C. 1991, c. 11, and therefore not subject to broadcasting regulations.

The Court upheld the Federal Court of Appeal ruling (2010 FCA 178) which answered a question by way of reference from the CRTC:

Do retail Internet service providers (“ISPs”) carry on, in whole or in part, “broadcasting undertakings” subject to the Broadcasting Act when, in their role as ISPs, they provide access through the Internet to “broadcasting” requested by end-users?

The Supreme Court based its ruling on the policy objectives behind the Broadcasting Act, which they found were primarily related to “freedom of expression and journalistic, creative and programming independence” as well as “the cultural enrichment of Canada, the promotion of Canadian content, establishing a high standard for original programming, and ensuring that programming is diverse”.

As such, ISPs do not engage in these objectives, since they are “merely providing the mode of transmission”, and “take no part in the selection, origination, or packaging of content”.

The ruling was opposed by a “cultural group” consisting of the Alliance of Canadian Cinema, Television & Radio Artists (ACTRA), Canadian Film & Television Production Association (CFTPA), Directors Guild of Canada (DGC) and Writers Guild of Canada (WGC). They argued that ISPs should be subject to the Act, which would have led to additional fees imposed on programs “broadcast” over the Internet, and might have imposed additional rules on ISPs with regards to content and advertising.

Although the ruling was a short one decided on a simple question of statutory interpretation, it has some implications for future rulings on net neutrality and content control. The court relied on its findings in Electric Despatch in Society of Composers, Authors and Music Publishers of Canada v. Canadian Assn. of Internet Providers, 2004 SCC 45, stating that “ISPs merely act as a conduit for information provided by others, they could not themselves be held to communicate the information”.

The court declined to answer the appellant’s submission with regards to whether ISPs were “telecommunications common carriers” under the Telecommunications Act, S.C. 1993, c. 38.