SUPREME COURT OF CANADA
IN THE MATTER OF the Broadcasting Act, S.C. 1991, c.
11 ;
AND IN THE MATTER OF the Canadian Radio-Television and
Telecommunications Commission’s Broadcasting Regulatory
Policy
CRTC 2009-329 and Broadcasting Order CRTC 2009-452;
AND IN THE MATTER OF an application by way of a reference
to the
Federal Court of Appeal pursuant to ss. 18.3(1) and 28(2)
of the
Federal Courts Act, R.S.C. 1985, c. F-7 .
Alliance of Canadian Cinema, Television and Radio Artists,
Canadian Media Production Association,
Directors Guild of Canada and Writers Guild of Canada
Appellants
v.
Bell Aliant Regional Communications, LP, Bell Canada,
Cogeco Cable Inc.,
MTS Allstream Inc., Rogers Communications Inc.,
TELUS Communications Company, Videotron Ltd.
and Shaw Communications Inc.
Respondents
- and -
Canadian Radio-Television and Telecommunications Commission
Intervener
Coram:
McLachlin C.J. and LeBel, Deschamps, Fish, Abella, Rothstein, Cromwell,
Moldaver and Karakatsanis JJ.
Reasons for Judgment:
(paras. 1 to 11):
|
The Court
|
Reference re Broadcasting Act , 2012 SCC 4, [2012] 1 S.C.R.
142
IN THE MATTER OF the Broadcasting Act, S.C. 1991, c. 11 ;
AND IN THE MATTER OF the Canadian Radio‑television and
Telecommunications Commission’s Broadcasting Regulatory Policy CRTC 2009‑329
and Broadcasting Order CRTC 2009‑452;
AND IN THE MATTER OF an application by way of a reference to the Federal
Court of Appeal pursuant to ss. 18.3(1) and 28(2) of the Federal Courts
Act, R.S.C. 1985, c. F‑7
Alliance of Canadian Cinema, Television
and Radio Artists,
Canadian Media Production Association,
Directors
Guild of Canada and Writers Guild of Canada Appellants
v.
Bell Aliant Regional Communications, LP,
Bell Canada, Cogeco Cable Inc., MTS
Allstream Inc.,
Rogers Communications Inc., TELUS
Communications Company,
Videotron
Ltd. and Shaw Communications Inc. Respondents
and
Canadian
Radio‑television and Telecommunications Commission Intervener
Indexed as: Reference re Broadcasting Act
2012 SCC 4
File No.: 33884.
2012: January 16; 2012: February 9.
Present: McLachlin C.J. and LeBel, Deschamps, Fish, Abella,
Rothstein, Cromwell, Moldaver and Karakatsanis JJ.
on appeal from the federal court of appeal
Communications law — Broadcasting — Internet — Internet service providers
providing end‑users with access to broadcasting over Internet — Whether
Internet service providers are broadcasters when they provide end‑users
with access to broadcasting through Internet — Broadcasting Act, S.C. 1991, c. 11,
ss. 2 , 3 .
The
Canadian Radio‑television and Telecommunications Commission referred to
the Federal Court of Appeal the question of whether 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 court
held that they do not.
Held: The appeal
should be dismissed.
The
terms “broadcasting” and “broadcasting undertaking”, interpreted in the context
of the language and purposes of the Broadcasting Act , are not meant to
capture entities which merely provide the mode of transmission. The Broadcasting
Act makes it clear that “broadcasting undertakings” are assumed to have
some measure of control over programming. The policy objectives listed under
s. 3(1) of the Act focus on content. When providing access to the Internet,
which is the only function of ISPs placed in issue by the reference question,
they take no part in the selection, origination, or packaging of content. The
term “broadcasting undertaking” does not contemplate an entity with no role to
play in contributing to the Act’s policy objectives. Accordingly, ISPs do not
carry on “broadcasting undertakings” under the Broadcasting Act when
they provide access through the Internet to “broadcasting” requested by end‑users.
Cases Cited
Referred
to: Electric Despatch Co. of Toronto v. Bell
Telephone Co. of Canada (1891), 20 S.C.R. 83; Society
of Composers, Authors and Music Publishers of Canada v. Canadian Assn. of
Internet Providers, 2004 SCC 45, [2004] 2 S.C.R. 427; Capital Cities
Communications Inc. v. Canadian Radio-Television Commission, [1978] 2
S.C.R. 141.
Statutes and Regulations Cited
Broadcasting Act, S.C. 1991, c. 11, ss. 2(1)
“broadcasting”, (3), 3(1).
Telecommunications Act, S.C. 1993,
c. 38, s. 2(1) “telecommunications common carrier”.
APPEAL
from a judgment of the Federal Court of Appeal (Noël, Nadon and Dawson JJ.A.),
2010 FCA 178, 322 D.L.R. (4th) 337, 404 N.R. 305, [2010] F.C.J. No. 849
(QL), 2010 CarswellNat 2092, in the matter of a reference brought by the
Canadian Radio‑television and Telecommunications Commission regarding the
Broadcasting Act . Appeal dismissed.
Thomas G. Heintzman, Q.C., and Bram D. Abramson, for the appellants.
John B. Laskin,
Yousuf Aftab and Nicole Mantini, for the respondents Bell Aliant
Regional Communications et al.
Nicholas McHaffie
and Dean Shaikh, for the respondent Shaw Communications Inc.
No one appeared for
the intervener.
The following is the
judgment delivered by
[1]
The Court — In a 1999 report, the Canadian Radio-television and
Telecommunications Commission (“CRTC”) concluded that the term “broadcasting”
in s. 2(1) of the Broadcasting Act, S.C. 1991, c. 11 , included programs
transmitted to end-users over the Internet. At that time, the CRTC concluded
that it was not necessary to regulate broadcasting undertakings that provided
broadcasting services through the Internet. It exempted these “new media
broadcasting undertakings” from the requirements of the Broadcasting Act .
In 2008, after public hearings, the CRTC revisited this exemption. One of the
issues raised was whether Internet service providers — ISPs — were subject to
the Broadcasting Act when they provided end-users with access to
broadcasting through the Internet. The CRTC opted to send this issue to the
Federal Court of Appeal for determination on a reference (2010 FCA 178, 322
D.L.R. (4th) 337). The specific reference question was:
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?
[2]
ISPs provide routers and other infrastructure that
enable their subscribers to access content and services made available on the
Internet. This includes access to audio and audiovisual programs developed by
content providers. Content providers depend on the ISPs’ services for Internet
delivery of their content to end-users. The ISPs, acting solely in that
capacity, do not select or originate programming or package programming
services. Noël J.A. held that ISPs, acting solely in that capacity, do
not carry on “broadcasting undertakings”.
[3]
We agree with Noël J.A., for the reasons he gave, that the terms
“broadcasting” and “broadcasting undertaking”, interpreted in the context of
the language and purposes of the Broadcasting Act , are not meant to
capture entities which merely provide the mode of transmission.
[4]
Section 2(1) of the Broadcasting Act defines
“broadcasting” as “any transmission of programs . . . by radio waves or other
means of telecommunication for reception by the public”. The Act makes it
clear that “broadcasting undertakings” are assumed to have some measure of
control over programming. Section 2(3) states that the Act
“shall be construed and applied in a manner that is consistent with the freedom
of expression and journalistic, creative and programming independence enjoyed
by broadcasting undertakings”. Further, the policy objectives listed under s.
3(1) of the Act focus on content, such as the cultural enrichment of Canada,
the promotion of Canadian content, establishing a high standard for original
programming, and ensuring that programming is diverse.
[5]
An ISP does not engage with these policy
objectives when it is merely providing the mode of transmission. ISPs provide Internet access to end-users. When providing access to
the Internet, which is the only function of ISPs placed in issue by the
reference question, they take no part in the selection, origination, or
packaging of content. We agree with Noël J.A. that the term “broadcasting
undertaking” does not contemplate an entity with no role to play in
contributing to the Broadcasting Act ’s policy objectives.
[6]
This interpretation of “broadcasting
undertaking” is consistent with Electric Despatch Co. of Toronto v. Bell
Telephone Co. of Canada (1891), 20 S.C.R. 83. In Electric Despatch,
the Court had to interpret the term “transmit” in an exclusivity contract
relating to messenger orders. Like the ISPs in this
case, Bell Telephone had no knowledge or control over the nature of the
communication being passed over its wires. This Court had to determine whether
the term “transmit” implicated an entity who merely provided the mode of
transmission. The Court concluded that only the actual sender of the message
could be said to “transmit” it, at p. 91:
It is the person who breathes into the
instrument the message which is transmitted along the wires who alone can be
said to be the person who “transmits” the message. The owners of the telephone
wires, who are utterly ignorant of the nature of the message intended to be
sent, cannot be said . . . to transmit a message of the purport of which
they are ignorant. [Emphasis added.]
[7]
This Court relied on Electric Despatch in
Society of Composers, Authors and Music Publishers of Canada v. Canadian
Assn. of Internet Providers, 2004 SCC 45, [2004] 2 S.C.R. 427, a proceeding
under the Copyright Act, R.S.C. 1985, c. C-42 , to conclude that since
ISPs merely act as a conduit for information provided by others, they could not
themselves be held to communicate the information.
[8]
The appellants in this case argued that we
should instead follow Capital Cities Communications Inc. v. Canadian
Radio-Television Commission, [1978] 2 S.C.R. 141. In Capital Cities,
decided under a 1968 version of the Broadcasting Act , the CRTC had
amended Rogers Cable’s licence, allowing Rogers to delete and substitute the television
advertisements in the American broadcasts it received before it distributed the
broadcast to viewers. The American broadcasting stations argued that the Broadcasting
Act was ultra vires Parliament since it
purported to regulate systems situated wholly within provincial boundaries. As
part of this argument, the American 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, stating that it was a “single system” coming under
federal jurisdiction. The appellants argue before this Court that ISPs
similarly form part of a single broadcasting system that is subject to
regulation under the Broadcasting Act .
[9]
Like Noël J.A., we are not convinced that Capital
Cities assists the appellants. The case concerned
Rogers Cable’s ability to delete and substitute advertising from American
television signals. There was no questioning in Capital
Cities of the fact that the cable television
companies had control over content. ISPs have no such ability to control the
content of programming over the Internet.
[10]
Contrary to the submissions of the appellants,
we need not decide whether the fact that ISPs use “routers” prevents them from
being characterized as telecommunications common carriers. Noël J.A. was not
asked to decide whether ISPs are a “telecommunications common carrier” under s.
2(1) of the Telecommunications Act, S.C. 1993, c. 38 . Nor, based
on the record before us, do we feel it appropriate for us to do so.
[11]
We therefore agree with Noël J.A.’s answer to the reference question,
namely, that ISPs do not carry on “broadcasting undertakings” under the Broadcasting
Act when, in their role as ISPs, they provide access through the Internet
to “broadcasting” requested by end-users. We would therefore dismiss the
appeal with costs.
Appeal
dismissed with costs.
Solicitors
for the appellants: McCarthy Tétrault, Toronto.
Solicitors
for the respondents Bell Aliant Regional Communications et al.: Torys,
Toronto.
Solicitors
for the respondent Shaw Communications Inc.: Stikeman Elliott,
Ottawa.