Supreme Court

Communications Law

ISPs do not carry on “broadcasting undertakings” by providing access through Internet

Following question referred by Canadian Radio-television and Telecommunications Commission (“CRTC”) Do retail Internet service providers (“ISPs”) carry on, in whole or in part, “broadcasting undertakings” subject to the Broadcasting Act (Can.), when, in their role as ISPs, they provide access through the Internet to “broadcasting” requested by end-users?. Question as framed based on assumption that “broadcasting” took place on Internet. Parties took view that answer turned on whether ISPs, when providing access to “broadcasting”, were themselves “broadcasting”. Federal Court of Appeal answered question in negative, finding that ISPs merely provided infrastructure to enable end-user subscribers to access content, applications and services made available by others on Internet. Definition of “broadcasting” and “broadcasting undertaking”, considered in context, not meant to capture entities whose sole involvement is to provide mode of transmission. Appeal to Supreme Court of Canada dismissed. Definition of “broadcasting”, “any transmission of programs . . . by radio waves or other means of telecommunication for reception by the public”, makes it clear that “broadcasting undertakings” assumed to have some measure of control over programming. Policy objectives in Act establish high standard for original programming, and ensuring that programming diverse. ISPs do not engage with policy objectives when they merely provide mode of transmission; they take no part in selection, origination, or packaging of content. ISPs do not carry on “broadcasting undertakings” by providing access through Internet to “broadcasting” requested by end-users.

Reference re Broadcasting Act (Can.) applicability to Internet Service Providers

(Feb. 9, 2012, S.C.C., McLachlin C.J.C., LeBel, Deschamps, Fish, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis JJ., File No. 33884) Decision at 322 D.L.R. (4th) 337, 192 A.C.W.S. (3d) 436 was affirmed. 210 A.C.W.S. (3d) 360 (10 pp.).

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