Broadcasting Act, Re, [2012] N.R. TBEd. FE.012

• Judge: McLachlin, C.J.C., LeBel, Deschamps, Fish, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis, JJ.
• Court: Supreme Court (Canada)
• Case Date: February 09, 2012
• Jurisdiction: Canada (Federal)
• Citations: [2012] N.R. TBEd. FE.012;2012 SCC 4;[2012] 1 SCR 142;428 NR 190

Broadcasting Act, Re (SCC) - Communications - Whether internet service providers are broadcasters

MLB being edited

Currently being edited for N.R. - judgment temporarily in rough form.

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

Temp. Cite: [2012] N.R. TBEd. FE.012

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 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 (intervenor)

(33884; 2012 SCC 4; 2012 CSC 4)

Indexed As: Broadcasting Act, Re

Supreme Court of Canada

McLachlin, C.J.C., LeBel, Deschamps, Fish, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis, JJ.

February 9, 2012.

Summary:

The question stated on a reference by the Canadian Radio-Television and Television Communications Commission 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 Federal Court of Appeal, in a judgment reported (2010), 404 N.R. 305, answered the reference question as follows: "Retail ISPs do not 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 decision was appealed.

The Supreme Court of Canada dismissed the appeal.

Telecommunications - Topic 2606

Cable television - General - Broadcasting undertaking defined - The Federal Court of Appeal held that "Retail ISPs do not 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 sole role of the ISP was to provide the mode of transmission for content requested by end-users - An ISP's role was content-neutral - It did not select or originate programming or pack or aggregate programming services - An ISP had no knowledge of the content being transmitted - The court noted that "the definition of 'broadcasting' when read on its own can include a person whose sole involvement is to provide the mode of transmission since no distinction is made as to the active or passive nature of the involvement. However, this ceases to be the case when the definition is considered contextually having regard to the scheme and purpose of the Broadcasting Act. ... the definition of 'broadcasting' is also directed at the person who transmits a program and that a person whose sole involvement is to provide the mode of transmission is not transmitting the program and hence, is not 'broadcasting'" - The Supreme Court of Canada, in affirming the decision, agreed that "broadcasting" and "broadcasting undertaking" were not intended to capture entities "which merely provide the mode of transmission".

Telecommunications - Topic 3548

Internet (World Wide Web) - Internet service providers and site operators - General - Transmission of "broadcasting" - [See Telecommunications - Topic 2606 ].

Cases Noticed:

Electric Despatch Co. of Toronto v. Bell Telephone of Canada (1891), 20 S.C.R. 83, refd to. [para. 6].

Society of Composers, Authors and Music Publishers of Canada v. Canadian Association of Internet Providers et al., [2004] 2 S.C.R. 427; 322 N.R. 306; 2004 SCC 45, refd to. [para. 7].

Capital Cities Communications Inc. et al. v. Canadian Radio-Television Commission et al., [1978] 2 S.C.R. 141; 18 N.R. 181, refd to. [para. 8].

Counsel:

Thomas G. Heintzman, Q.C., and Bram 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.

Solicitors of Record:

McCarthy Tétrault, Toronto, Ontario, for the appellants;

Torys, Toronto, Ontario, for the respondents, Bell Aliant Regional Communications et al.;

Stikeman Elliott, Ottawa, Ontario, for the respondent, Shaw Communications Inc.

This appeal was heard on January 16, 2012, before McLachlin, C.J.C., LeBel, Deschamps, Fish, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis, JJ., of the Supreme Court of Canada.

On February 9, 2012, the following judgment was delivered by the Court in both official languages.