SCC Confirms That ISPs Are Not Broadcasters

This morning in a brief decision Canada’s top court ruled in a Reference that Internet service providers are not bound by the CRTC’s broadcast regulations

The judgment is so brief we quote it in full:

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.

The following is the judgment delivered by

The Court —

[1] 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) 339). 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 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 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.


  1. Lest anyone be tempted to conclude that today’s decision signifies anything about the five copyright cases heard by the SCC in December 2011 these reasons are very brief and to the point, and that the Reference appeal was heard on January 16. Today’s reasons came out just over three weeks later which is lightning fast for any court, let alone the SCC.

    The court will think long and hard about the five cases, because they likely will set the direction for copyright in the digital economy.

    Holding that the Broadcast Regs would apply oddly if at all to ISPs is a much easier call.

  2. Simon:

    This is a decision from “The Court” rendered only about three weeks after the hearing.

    This is about as decisive as it gets.

    The Court is clearly trying to instill clarity and set down some bright lines where the internet is concerned.

    And it is also showing that the internet fits into a common law continuum and is not immune from the rules of gravity or common sense.

    If the Court can reach back to the 19th century and to common law to deal with the jurisdiction of the CRTC in 2012 concerning the internet, then it would not be surprising if it were to do so regarding the K-12 fair dealing case, for example, in which I and Prof. Ariel Katz filed an intervener brief urging consideration of important 19th century common law jurisprudence. See:

    IMHO, today’s decision bodes well for a “user friendly” outcome to all of all of the “pentalogy” cases as well as the “value for signal” case coming up April 19, 2012