Regulation of the Internet in Canada

By Alan Gahtan - Law Times, September 21, 1999

The Canadian Radio-television and Telecommunications Commission (CRTC), the body that regulates Canada's radio, television and telecommunications industries, issued a public notice on July 31, 1998 (Telecom Public Notice CRTC 98-20) which initiates a proceeding under both the Broadcasting Act and the Telecommunications Act to examine the rapidly expanding range of new services known as "new media".

The Commission seeks to understand in what ways, and to what extent, new media affects, or is likely to affect, the broadcasting and telecommunications undertakings now regulated by the Commission. The Commission also seeks to address the extent to which it should regulate and supervise new media pursuant to the Broadcasting Act and the Telecommunications Act. It has purposely not defined a scope for "new media" but recognized that "virtually all services found on the Internet could be considered as forms of new media."

The review has been prompted by the increasing numbers and types of services that are being delivered by way of new distribution methods and technologies. The Commission notes that Internet audio, video and other services, whether delivered on demand or in real time, are becoming more widely available as the result of software and hardware developments and greater network capabilities.

The CRTC has in the past applied policies that encourage the development of Canadian content. The CRTC has also applied policies to support Canada's cultural industries by ensuring that new broadcasting content services meet the sovereignty and cultural objectives of the Broadcasting Act, and that content services are introduced in a manner which contributes to the objective of reinforcing Canadian sovereignty and cultural identity. However, the Commission does state that it is aware that the "approaches that have proven successful in the past with respect to the distribution of the programming services of conventional broadcasting undertakings may be inappropriate for the distribution of new media services to Canadians, or inadequate in an age of worldwide networks and the global delivery of services."

In order to assist interested parties in developing their submissions, the Notice sets out a number of questions for parties to address. Some of these questions may provide clues as to what the Commission contemplates may emerge from the process. The Commission posses several questions which indicate that one option being considered may be the imposition of a special tax on Internet access to fund the development and production of Canadian content. Such a tax would raise the cost of Internet access in Canada for consumers and business users of the Internet.

Other questions highlight a concern regarding access by Canadian new media producers to the channels of distribution. The Commission appears to be exploring what alternatives may exist to encourage Canadian distribution channels and content aggregators to promote Canadian content.

The Commission is also inquiring whether there are forms of Canadian new media content for which some degree of regulation would be appropriate. Examples cited include privacy issues, offensive content (e.g. obscenity, hate propaganda, and discriminatory material), violence and gender portrayal, and advertising to children. Although not specifically mentioned in the Notice, another area of possible regulation of content may be unsolicited commercial e-mail, an area which is of growing concern to companies (including law firms) that provide their staff with Internet e-mail facilities.

Canadian regulation of content on the Internet is also the subject of a private member's bill introduced by Chris Axworthy. Bill C-424, introduced on June 11, 1998, calls for Internet Service Providers to be licensed by the CRTC. It also requires ISPs to co-operate in order to minimize the use of the Internet for the publication or proliferation of child pornography or the facilitation of a sex offence involving a child. ISPs may be required to block access to identified portions of the Internet that carry child pornography. Finally, the Bill provides that special powers under search warrants may be prescribed by the Minister of Industry to facilitate electronic searches. Axworthy had introduced a similar bill (C-396) on April 8, 1997 which died at the end of the 35th Parliament.

Interested parties may submit written comments by October 1, 1998. Comments on submissions may be made until October 21, 1998. The Commission will then hold a public hearing commencing on November 23, 1998 in Hull, Quebec. Following the public hearing, interested parties will have an opportunity to file final written arguments (no later than January 15, 1999). For further information, see the CRTC Web site at <http://www.crtc.gc.ca/>.

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