Law Times

Law Times • June 4, 2012 BY JULIUS MELNITZER For Law Times ISPS ARE NOT BROADCASTERS In February 2012, the Supreme Court of Canada ruled that Internet broadcasting isn't subject to current regula- tory authority under the Broadcasting Act. The top court' Reference re Broadcasting Act adopted both the decision and reasoning of the Federal Court of Appeal judgment that it was reviewing. "We therefore agree with s decision in [Federal Court of Appeal Justice] Noël J.A.' reference question, namely, that ISPs [Internet service provid- ers] do not carry on 'broad- casting undertakings' under the Broadcasting Act when, in their role as ISPs, they provide access through the Internet to 'broadcasting' requested by end-users," the court wrote. The case finds its origins in a s answer to the Behavioural advertising, money laundering on regulatory agenda ROUNDUP FOCUS the purport of which they are ignorant." The decision means ISPs, is "accessible, easy to read, and accurate. including Bell Canada and Rogers Communications Inc., aren't at risk of pay- ing levies that cultural groups had been asking the CRTC to impose on them to fund the development of Canadian new media broadcasting content. BEHAVIOURAL ADVERTISING In December 2011, the Office of the Privacy Commissioner of Canada released new online behavioral advertising guide- lines aimed at ensuring that advertisers' practices are trans- parent and comply with federal private-sector privacy legisla- tion. "The guidelines are not intended to be revolutionary," says Toronto lawyer Fraser Mann. "Their main objective is to ensure that consumers are informed of specific online Canadian Radio-television and Telecommunications Com- mission hearing on media exemptions during which the question arose as to whether ISPs were subject to regulation. The CRTC referred the ques- tion to the Federal Court of Appeal. As the top court saw it, ISPs were only conduits to the Internet and therefore not sub- ject to regulation as broadcast- ers. 'broadcasting undertakings' are assumed to have some measure of control over programming, "The act makes it clear that the court noted. As well, in their role as con- ISPs didn't engage the duits, " Broadcasting Act's policy objec- behavioural practices." Accordingly, the guidelines confirm that online behav- ioural advertising is a "reason- able purpose" for collecting personal information under the Personal Information Protection and Electronic Documents Act subject to cer- tain restrictions. To begin with, children may not be the subjects of online behavioural advertis- ing because they don't have the capacity to consent. Otherwise, because the data edge and consent requirements. The legislation's knowledge requirements envisage that advertisers have a policy that s knowl- sumers aware that they're col- lecting information for online behavioural advertising before actually doing it. "The key issue on the con- tisers familiar with American law on the subject won't face difficult adjustments if they resort to online behavioural advertising in Canada. "There are no vast differ- The upshot is that U.S. adver- " says Mann. collected for online behavioural advertising is likely personal information, advertisers must comply with PIPEDA' ences between the OBA rules in Canada and the U.S.," says Wendy Gross of Osler Hoskin & Harcourt LLP. ANTI-MONEY LAUNDERING In December 2011, the federal government released a con- sent side, PIPEDA allows advertisers to use opt-out processes as long as they're easy to use and make con- " On the con- sent side is just how clear the notice has to be, PAGE 13 sultation paper related to the strengthening of anti-money laundering laws. The document followed international criticism that Canada was lagging behind in its regulation of the movement of digital money. "One issue the government' looking at is requiring a review of prepaid access products, says Gross. If the consultation paper is s " any indication, it appears the government is leaning towards introducing similar rules for small-money cards that it has for the financial sector gener- ally. "We may be looking at know- your-client rules that will make it more difficult to introduce new kinds of payment prod- ucts," says Gross. "It' U.S. clients have elected not to proceed with certain initiatives because of the uncertain regu- latory environment." s yet another area where LT STAY UP TO DATE ON CLASS ACTIONS ACROSS CANADA tives that include the cultural enrichment of Canada, the pro- motion of Canadian content, establishing a high standard for original programming, and ensuring that programming is diverse. "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," the court wrote. Although the Broadcasting Act did define broadcasting as any "transmission of programs," it didn't implicate an entity that merely provided the means of it. Indeed, the court concluded, only the actual sender of the message could be seen as trans- mitting it. "It is the person who breathes into the instrument sage which is transmitted along the wires who alone can be said to be the person who 'transmits' the message, the mes- "The owners of the telephone wires, who are utterly ignorant of the nature of the message intended to be sent, cannot be said . . . to transmit a message of " the court wrote. www.lawtimesnews.com KIM ORR CLASS ACTION MONITOR ON WESTLAW® CANADA The bi-weekly Kim Orr Class Action Monitor on Westlaw® Canada is the one-stop source that keeps you up to date by providing information and commentary on the latest class actions, case updates, news, and special focus articles on important topics in class action law. With lead editors from Kim Orr Barristers and contributions from a team of leading Class Action lawyers, this source offers the perspective of experts from the plaintiff and defence bar from Canada and the United States. It also includes Class Action legislation and related materials for all of Canada. For more information, visit www.westlawcanada.com or call 1-866-609-5811

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