In May 2016, the Quebec National Assembly enacted section 12 of
An Act respecting mainly the implementation of
certain provisions of the Budget Speech of 26 March 2015,
L.Q. 2016, c. 7 (Bill 74) Among other provisions, section 12 of
Bill 74 effectively gives Lotto-Québec the power to order
Internet Service Providers (ISPs) to block its online competitors.
There have been a number of challenges to the Bill. In particular,
the Public Interest Advocacy Centre (PIAC) filed an application
with the CRTC seeking certain declaratory and other relief
regarding section 12 of Bill 74 (based on a challenge to the
constitutionality of section 12). Further, the Canadian Wireless
Telecommunications Association filed an application with the
Superior Court of Québec, also challenging section 12 of
Bill 74 on constitutional grounds.
It is interesting to note that the CRTC issued a preliminary determination by
letter dated September 1, 2016 on the issue. While the CRTC has
suspended PIAC's application pending resolution of the
constitutional arguments before the courts, it nevertheless
addressed the legal issues of the scope of Section 36 of the
Telecommunications Act, which expressly requires CRTC
consent before any (carrier) ISP "controls the content or
influence(s) the meaning or purpose of telecommunications carried
by it for the public." The CRTC also expands on the
application of its 2009 Internet Traffic Management Policy as it
relates to content blocking by ISPs.
In its letter determination, the CRTC stated its preliminary
view that Section 36 of the Telecommunications Act
prohibits the blocking by Canadian (carrier) ISPs of access by
end-users to specific websites on the Internet. This means that the
provisions in the Quebec Bill would require prior Commission
approval. The CRTC goes further and states that it would only
permit such blocking if it would "further the
telecommunications policy objectives." Moreover, the CRTC
expressly states that compliance "with other legal or
juridical requirements—whether municipal, provincial, or
foreign—does not in and of itself justify the blocking of
specific websites by Canadian carriers, in the absence of
Commission approval under the Act."
The CRTC is seeking comments from interested persons on the
above-noted preliminary views. Comments must be filed on or before
September 16, 2016.
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