09/24/2014 02:39 EDT | Updated 11/24/2014 05:59 EST

Not Just Netflix: Google Challenges the CRTC's Power to Regulate Online Video

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The Netflix-CRTC battle has generated considerable attention, but Netflix is not alone in contesting the CRTC's authority to regulate Internet video services. As I suggested in a post yesterday, Google has adopted a similar position, refusing to provide the Commission with all of the information it was seeking. While the Google and Netflix submissions have oddly not yet been posted by the CRTC (all others have), the Globe obtained a copy that confirms Google's position that it believes it also falls outside the Broadcasting Act. According to the report (also not online), Google declined to provide some requested data, noting that "Google does not publish or otherwise disclose this commercially sensitive business information." The company adopted the position that its disclosures were voluntary and that it is not part of the Canadian broadcast system.

The Google position is notable because it is presumably not based on the question of presence within Canada, since Google maintains a significant Canadian presence. Rather, the core challenge will likely focus on whether a service such as Youtube (which once went by the slogan "Broadcast Yourself") can properly be characterized as broadcasting for the purposes of current Canadian law.

Since Google appeared on the first day, it is easy to forget that its appearance before the CRTC was also marked by tension with the Commission. For example, there was this exchange between CRTC Chair Jean-Pierre Blais and Google's Jason Kee:

THE CHAIRPERSON: Now, in your submission you're arguing that Canadians are very successful in the online environment, both in terms of creating the content and exporting it, in a sense, beyond the borders, yet I seem to find no evidence or research that supports exactly what kind of Canadian content or content made by Canadians we are talking about. I find that a bit surprising from a company that prides itself to being the information and web search expert.

MR. KEE: It's precisely for that reason that at least I provided some of the anecdotal examples of a few of the success stores that we have seen on the platform. In the online environment it's actually not unusual that detailed information like that is actually not disclosed, largely for competitive reasons, which is why it wasn't included.

THE CHAIRPERSON: Our rules allow for filing information in confidence. Are you saying that you have that information?

MR. KEE: I'm saying that I would have to have internal discussions about the availability of the information.

THE CHAIRPERSON: What do you mean by that?

MR. KEE: I would have to have a discussion internally about whether or not that information could be obtained.

THE CHAIRPERSON: That doesn't really answer my question. Is that information available in terms of the amount of content available that is of Canadian origin, let's say on the YouTube offerings?

MR. KEE: Internally we are able to determine where the content was uploaded from, which is what we are defining as Canadian content for the purpose of this discussion. As noted in my submission and in my presentation, that identifying something as Canadian content in the sense that the CRTC uses rules to determine it or, say, for a CAVCO scale for example, is not information that we have.

THE CHAIRPERSON: But you are able to identify how much of that content has been uploaded from a Canadian site or a Canadian location?

MR. KEE: Correct.

THE CHAIRPERSON: Whether or not it is 10 out of 10 or 9 out of 10 within the traditional regulatory network -- regulations; is that correct?

MR. KEE: I'm not -

THE CHAIRPERSON: Well, you're able to tell me you have information on where that audio-visual content is being posted; is that correct?

MR. KEE: Where it's being uploaded from, correct.

THE CHAIRPERSON: Would you be able to provide that between now and the 19th of September?

MR. KEE: I would have to have internal discussions, with respect, because we don't customarily disclose that kind of information.

THE CHAIRPERSON: This is a regulatory process and I can understand that you don't necessarily share information with the public-at-large, that's why we have rules and undertakings.

MR. KEE: And I can undertake to have a discussion internally with respect to the provision of that information.

THE CHAIRPERSON: And I guess if you don't provide it, we can draw the conclusions that we can from that lack of co-operation.

MR. KEE: It wouldn't be intended as a lack of co-operation.

THE CHAIRPERSON: Whether you intend it that way or not, it may be perceived that way.

So will you be able to undertake to come back to us by the 19th of September on that issue?

MR. KEE: I can certainly come back with a response.

CRTC Chair Jean-Pierre Blais did not raise a regulatory threat as he did with Netflix, but the reference to drawing conclusions on Google's lack of cooperation was a clear shot across the bow. In light of those comments, both Google and Netflix appear to have concluded that they will cooperate voluntarily where possible, but are prepared to challenge the CRTC's jurisdiction over their online video services. With two of the biggest Internet companies in the world disputing the CRTC's authority to regulate, the Commission may well head to the courts to either enforce its perceived powers or simply ask the courts by way of reference to determine whether the Broadcasting Act applies to Internet video services.


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