• IP Monitor - ISPs - Not Broadcasters Supreme Court Says
  • February 14, 2012 | Authors: Claude Brunet; Brian W. Gray
  • Law Firms: Norton Rose Canada LLP - Montreal Office ; Norton Rose Canada LLP - Toronto Office
  • On February 9, 2012, the Supreme Court issued its decision in Reference Re: Broadcasting Act. 2012 SCC 4.

    In 1999, The Canadian Radio-Telecommunications Commission (“CRTC”) concluded that the term “broadcasting” included programs transmitted to end-users over the Internet.  However it decided that it was not necessary to regulate  such “broadcasting” at that time.  In 2008, the CRTC revisited this exemption and raised the issue of 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 sent this matter to the Federal Court of Appeal by way of a reference and the matter was further appealed to the Supreme Court.

    The specific question before the court 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?”

    The question was limited to ISPs who merely provide the mode of transmission and access to the Internet.

    The Supreme Court agreed with the Federal Court of Appeal that such ISPs do not carry on “broadcasting undertakings” under the Broadcasting Act.

    Given the limited nature of the reference it remains an open question about the status of any ISPs that do more than simply provide access or the mode of transmission.

    A link to the case is here