Originally published in Blakes Bulletin on Litigation
& Dispute Resolution, February 2012
On February 9, 2012, the Supreme Court of Canada (the SCC) held
in Reference re Broadcasting Act that Internet service
providers (ISPs) are not subject to regulation by the Canadian
Radio-television and Telecommunications Commission (CRTC) under the
In September 2008, the CRTC initiated a proceeding to consider
its regulation of new media broadcasting organizations. In the
course of this proceeding, a number of cultural groups advocated
that the CRTC use its powers under the Broadcasting Act to
impose a levy on ISPs that would go to support the creation and
presentation of Canadian new media broadcasting content. The ISPs
argued that the CRTC had no authority to regulate them under the
Broadcasting Act because they are not broadcasters.
The CRTC eventually decided not to impose the levy. However, the
issue of whether ISPs fell under the Broadcasting Act was
important enough to justify referring the question to the Federal
Court of Appeal (the FCA), which was asked to consider the
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
Relying principally on the policy goals of the Broadcasting Act,
the FCA held that ISPs were not broadcasting undertakings.
Decision of the Supreme Court
In a brief decision, the SCC affirmed the decision of the FCA.
The SCC focused on the policy objectives of the Broadcasting
Act, as reflected in provisions emphasizing the importance of
"freedom of expression and journalistic, creative and
programming independence" and the promotion of Canadian
According to the SCC, these provisions indicate that the
Broadcasting Act is only intended to apply to undertakings
with some measure of control over the content of programming. ISPs,
on the other hand, have "no role to play in contributing to
the Broadcasting Act's policy objectives." They
simply act as a conduit for the transmission of programming, and
play no role in the selection, origination, or packaging on
In drawing this distinction between a company with control over
content and a company merely providing a means of transmission, the
SCC relied on its decision in the 2004 case of Society of
Composers, Authors and Music Publishers of Canada v. Canadian Assn.
of Internet Providers (SOCAN), a copyright case in
which it concluded that the ISPs were not liable for copyright
infringement for which they have simply acted as passive
Trend Continues Toward Limiting Liability of Mere
The decision in Reference re Broadcasting Act only
applies to ISPs acting as passive conduits for broadcasting created
and selected by others. An ISP that decides to get into the
business of providing content could still be regulated under the
The decision is the latest of several SCC decisions that limit
the responsibility of intermediaries. In the SOCAN case,
as noted above, the SCC stated that ISPs should not be held liable
for copyright infringement passing through their servers.
Similarly, in the SCC's 2011 decision in Crookes v.
Newton, a majority of judges held that an ISP not warned of
defamatory content on its servers is entitled to raise an
"innocent dissemination" defence.
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