Daniel Dawalibi is an articling student at McCarthy Tétrault LLP.  The firm acted for the Appellant in this hearing before the Supreme Court of Canada.

On January 16, 2011, the Supreme Court heard an appeal in the case of Alliance of Canadian Cinema, Television & Radio Artists, et al. v. Bell Aliant Regional Communications, LP, et al.

The appeal arose from the following reference question put by the Canadian Radio-television and Telecommunications Commission (CRTC) to the Federal Court of Appeal:

Do retail Internet service providers (ISPs) carry on, in whole or in part, “broadcasting undertakings” subject to the Broadcasting Act, [S.C. 1991, c. 11 (the Broadcasting Act)] when, in their role as ISPs, they provide access through the Internet to “broadcasting” requested by end-users?

The terms “broadcasting” and “broadcasting undertaking” are as defined in the Broadcasting Act as amended.

The Federal Court of Appeal heard submissions from two groups. The “Cultural Groups”, consisting of the Alliance of Canadian Cinema, Television & Radio Artists (ACTRA), the Canadian Media Production Association (CMPA), the Directors Guild of Canada (DGC), and the Writers Guild of Canada (WGC), argued that the question should be answered in the affirmative. This position was opposed by the “ISP Coalition”, including Bell, Cogeco, MTS Allstream, Rogers, and Telus. Shaw Communications also took part with separate counsel.

The question turned on whether ISPs engage in “transmission” in the meaning of the Broadcasting Act.  In its 2010 lower court decision in the same case, the Federal Court of Appeal answered the reference question in the negative.  Reading the definition of “broadcasting” together with the purpose and applicability to ISPs of the policy objectives of the Broadcasting Act, the Federal Court of Appeal accepted the argument that ISPs were “utterly ignorant” of the nature of the messages which move through their networks, and could not therefore be “broadcasting undertakings” since they only “provide the mode of transmission”.

At the Supreme Court, Thomas Heintzman, Q.C., made submissions on behalf of the Appellants, the Cultural Groups. He urged the Court to consider the difference between the activities of providing Internet access, which he argued includes transmitting content, and of acting as a “telecommunications common carrier”, which the Telecommunications Act defines as owning and operating the underlying “transmission facility” or physical network links through which transmissions are made.  He characterized the ISP Coalition’s and Shaw’s arguments as asserting that content-neutral “passive transmission” is excluded from the Broadcasting Act.

Justices Abella and Rothstein were particularly active in questioning whether an ISP needed to have control over the actual content of a transmission in order to fall under the CRTC’s Broadcasting Act jurisdiction. Chief Justice McLachlin ended the discussion when she asked whether there was any danger that Canada’s Internet landscape could be regulated as heavily as China’s, to which Mr. Heintzman pointed out that the CRTC is mandated to only apply regulations under the Broadcasting Act in a way that fosters freedom of expression, and only when it is necessary to achieve the Act’s policy objectives.

John Laskin responded on behalf of the ISP Coalition. He emphasized the limited nature of the CRTC’s reference question, that the only issue before the Court involved ISPs “in their role as ISPs”. Mr. Laskin took issue with the concept of “passive transmission”, and argued that Parliament’s vision was apparent, that ISPs fit more comfortably under the Telecommunications Act as “telecommunications common carriers” since they are unable to fulfill most of the Broadcasting Act’s policy objectives.

Nicholas McHaffie made submissions on behalf of Shaw, and argued that to answer the question the Court must look to a broader statutory framework which includes the Copyright Act. Under that Act, the Supreme Court previously ruled in the Society of Composers, Authors and Music Publishers of Canada v. Canadian Assn. of Internet Providers decision that ISPs were content-neutral “Internet intermediaries”, and therefore exempt from civil liability for copyright infringement. Mr. McHaffie suggested that ISPs do not need to be “telecommunications common carriers”, since the entire Telecommunications Act, which does not apply to broadcasting by broadcasting undertakings, operates analogously to the Copyright Act’s civil liability carve-out for content-neutral intermediaries. On the basis of this content-neutrality principle, Mr. McHaffie argued that ISPs must be treated as a single undertaking, whether they are involved in the transmission of audio-visual programs (broadcasting), or any other form of content.

In a brief reply, Mr. Heintzman suggested to the Court that ISPs were capable of furthering the Broadcasting Act’s policy objectives, should the CRTC identify a need for them to do so. He pointed to examples such as Project Cleanfeed Canada.  Project Cleanfeed Canada is a system by which certain ISPs have agreed to block access to foreign child pornography tagged as such by Cybertip.ca

The case is one of considerable complexity, involving a wide array of highly technical defined terms. It remains to be seen what effect the Court’s decision will have on the CRTC’s oversight of broadcasting over the Internet, and on the interpretation of the Broadcasting Act and Telecommunications Act.

Posted in Canada, Internet, IP, Jurisdiction, Supreme Court of Canada, Technology, Telecommunications