HUGE day in internet law in Canada. No, really! The Supreme Court has issued a ruling that is a win for the ISPs (Bell, Vidéotron, etc.). Now normally I wouldn’t support anything that is a win for those robber barons, but in this case I’ll make an exception, because the Court came down for common sense. Deets after the jump.
So the decision is officially called the “Reference re Broadcasting Act“, but you will hear it referred to as the “Broadcasting Reference” on the CBC tonight I’m sure. It technically pitted artists’ groups like ACTRA and the Directors And Writers Guild against the ISPs (and it seems like all the big ones are parties to the case). It is called a “reference” because the CRTC referred the case to the Supreme Court. Aren’t we lawyers clever! I have read the whole decision (luckily it’s only 11 paragraphs unlike some other ones that are thousands) and here’s the scoop.
There was really only one question the Court was asked to answer – are ISP’s “broadcasting undertakings” under the Broadcasting Act? Yeah I know that sounds totally boring and lame, but it’s important, I swear! It is important because the Broadcasting Act is what regulates content in Canada. It’s all about “protecting Canadian identity” or some such BS. Cancon rules? Because of the Act. The Beachcombers? Because of the Act. Bryan Adams’ success? Because of a deal with the Devil. Anyway, the point is the Broadcasting Act is essentially what’s responsible for Canadian culture. And if something is a “broadcasting undertaking” under the Act, it is left with a bunch of obligations to support and enforce Canadian culture.
So how did the Court answer the question? “Fuck and no” (I’m paraphrasing). The Court said that when those companies are acting as ISPs (of course they act in a ton of other ways, but this is only about them being ISPs) they are “merely providing the mode of transmission” to the content that would otherwise be covered under the Act. They have no control over the content that is delivered by their series of tubes. Makes sense.
Had the ISPs been broadcasting undertakings, they would have had to promote Canadian content somehow. To take it to the extreme case, they may have had to block content from outside Canada while promoting access to Canadian sites with Canadian content. Céline Dion for everyone! No one wanted that.
Common sense and less Céline Dion. Huzzah, Supreme Court!