In a big victory for digital rights, Canadian regulator, the CRTC, has rejected the Bell coalition proposal to censor the Internet.
Unless the Bell coalition (also known as Fairplay Canada) can think of another way to fight to censor the Internet, it is looking like it is the end of the road for this particular effort to censor the Internet.
While the effort initially looked overwhelming for digital rights advocates, the tide quickly began to turn shortly after. People began speaking out against the proposal, citing the fact that censorship could be unconstitutional. Canadians from all across the country submitted their own thoughts on the proposal. In droves, fearing that free speech is under threat, they called on the Canadian Radio-television and Telecommunications Commission (CRTC) to reject the proposal.
We did our own research on the state of Canadian media and found that over and over and over again that things have never been better. Such evidence ran contrary to the claims made by Fairplay Canada members who stated repeatedly that things have never been worse for Canadian media. The crush of evidence to the contrary proved to be so great, one member even went to the extreme of attempting to silence us.
Fortunately, we did not shut up on the topic and it appears that the truth won out in the end in this case. The CRTC has made a ruling that says that they are rejecting the application. In their ruling, they rejected the coalition’s claim that the CRTC has jurisdiction on this copyright matter. Michael Geist posted some excerpts on the matter:
Opponents of the site blocking proposal frequently cited concerns with the proposal and the limits of the CRTC’s mandate: my posts discussed how it failed to further and undermined the Telecommunications Act policy objectives, and was inconsistent with the CRTC’s policy direction. Similar comments came from groups such as ISOC Canada, which argued that the applications involved copyright, not telecommunications.
Having reviewed thousands of submissions, the CRTC would appear to agree. The Bell coalition relied heavily on two provisions in the Telecommunications Act to support its application. First, it pointed to section 24 which gives the CRTC the right to impose conditions on service, but the CRTC concluded that including site blocking within that provision created conflicts with the Copyright Act:
the proposed regime requires sections 24 and 24.1 of the Telecommunications Act to be interpreted in a way that creates a direct purposive and contextual conflict with the Copyright Act. Moreover, such an interpretation of the jurisdiction granted to the Commission by the Telecommunications Act runs contrary to the principle of interpreting sections harmoniously with related legislation.
The other section – section 36 – restricts the ability of carriers to control the content of messages without CRTC approval. Yet the Commission rightly noted this is an authorizing power, not a mandated power:
Section 36 of the Telecommunications Act limits the ability of carriers to control the content of messages carried over their networks without prior Commission authorization. While this section gives the Commission the explicit power to authorize an ISP to block a website, the proposed regime would go further and require such blocking pursuant to a Commission order. Because section 36 confers an authorizing power and not a mandatory power, the power to mandate blocking must be found elsewhere and must relate to subject matter that is clearly within the Commission’s jurisdiction under the Telecommunications Act.
The commission also examined whether the proposal fit within the Telecommunications Act policy objectives, finding that it only does so in a very tangential way:
In the Commission’s view, the proposed regime can be said to target the policy objectives in only a tangential way, in the sense that they address a social or economic need. The Supreme Court’s findings with respect to the objectives in the Broadcasting Act are equally applicable to an interpretation of the policy objectives in the Telecommunications Act: “establishing any link, however tenuous, between a proposed regulation and a policy objective in s. 3 of the [Broadcasting] Act is [not] a sufficient test for conferring jurisdiction on the CRTC.“
The policy objectives in the Telecommunications Act give the Commission extensive leeway to address social and economic needs broadly. For example, the Commission has addressed issues of public safety (e.g. through 9-1-1 and wireless public alerting regulation) and accessibility (e.g. through video relay service regulation). However, in the case of the proposed regime, which relates at its heart to the enforcement of the Copyright Act in the absence of a specific enforcement mechanism established by Parliament, any link to the policy objectives in the Telecommunications Act is tenuous, such that the Commission cannot support a finding of jurisdiction.
In light of all the above, the Commission determines that it does not have the jurisdiction under the Telecommunications Act to implement the proposed regime and, consequently, it will not consider the merits of implementing the regime. The Commission therefore denies the FairPlay Coalition’s application.
While it may seem like an all out victory, the efforts to erect the great Canadian Firewall is not totally dead yet. The Recording Industry Association of America (RIAA) has a Canadian arm known as Music Canada. Music Canada is currently pushing for censorship in Canada through the copyright review process. The idea is seemingly that this is a backstop should the effort at the CRTC fail (which it seemingly has).
That plot is still alive and well, but they would have to convince lawmakers that censoring the Internet does not run contrary to free speech and network neutrality. Network neutrality, among other things, is a concept that says that content should not be blocked, so it is going to be a very hard sell from the outset given that the concept opposes censorship in the first place. Still, anything is possible.
One thing is for sure, although the plot to censor the Internet isn’t totally dead, it did face a significant setback with this recent rejection.