Retail internet service providers, such as Rogers and Bell, that provide end‑users with access to broadcasting over the internet are not subject to the Broadcasting Act because they have no control over the programming transmitted, the Supreme Court of Canada has ruled.
Under the act, those that provide “broadcasting undertakings” are assumed to have some measure of control over programming.
However, internet service providers (ISPs) that provide the mode of transmission to broadcasting, both video and audio requested by end-users, "take no part in the selection, origination, or packaging of content," the top court said in a decision Thursday.
ISPs merely act as a conduit for information provided by others, and so cannot themselves be held to communicate the information, the court ruled.
"We’re very pleased that the court made the right decision," said Leigh-Ann Popek, a spokeswoman for Rogers, told CBC News in an email.
The appellants, which included the Alliance of Canadian Cinema, Television and Radio Artists, the Canadian Media Production Association, the Directors Guild of Canada and Writers Guild of Canada, had argued that ISPs form part of a single broadcasting system that is subject to regulation under the act.
They based their argument on the 1978 Capital Cities Communications Inc. v. Canadian Radio-television Commission (CRTC) case.
Under a 1968 version of the act, the CRTC had amended Rogers Cable’s licence, allowing it to delete and substitute the television advertisements in the U.S. broadcasts it received before distributing them to Canadian viewers.
The American broadcasting stations attempted to sever the function of receiving television signals from the distribution or retransmission of those signals within a particular province. The court rejected this severance of reception and distribution, ruling it was a single system coming under federal jurisdiction.
In making the ruling Thursday, the top court upheld a 2010 Federal Court of Appeal decision.
In a 1999 report, the CRTC concluded that the term “broadcasting” included programs transmitted to end-users over the internet, but that it was not necessary to regulate broadcasting services provided through the internet.
It exempted these “new media broadcasting undertakings” from the requirements of the Broadcasting Act. However, in 2008, after public hearings, the CRTC revisited the exemption.
One of the issues raised was whether internet service providers — ISPs — were subject to the act when they provided end-users with access to broadcasting through the internet.
The respondents in the Supreme Court case included Bell Aliant Regional Communications, Bell Canada, Cogeco Cable Inc., MTS Allstream Inc.,Rogers Communications Inc., TELUS Communications Company,Videotron Ltd. and Shaw Communications Inc. The CRTC had intervenor status.