Canada Supreme Court holds ISPs exempt from local content rules

In Alliance of Canadian Cinema, Television and Radio Artists Bell Aliant Regional Communications LP [2012] SCC 4, the Supreme Court of Canada upheld a finding that Bell, Rogers and other Canadian ISPs are not broadcasting undertakings” within the meaning of the Broadcasting Act 1991 (CA), which means they are exempt from the obligation to contribute to local content.  The Court held:

[2] ISPs provide routers and other infrastructure that enable their subscribers to access content and services made available on the Internet.  … 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. …

[5] An ISP does not engage with [cultural enrichment and diversity] 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. …

[7]  … since ISPs merely act as a conduit for information provided by others, they could not themselves be held to communicate the information.

This seems like a sensible decision which confirms that ISPs will ordinarily be mere conduits for the purpose of regulatory obligations imposed upon broadcasters and other content providers.  This is consistent with the position taken in copyright cases, and should be welcomed.  However, it leaves unresolved the issue of whether a vertically-integrated ISP which provides both content and connectivity would be classified in this way.

The decision also substantially calls into question the draft proposal in Australia which would require retail ISPs to contribute to the local content fund.