Timothy M. Denton

Success Through Understanding Technology

Timothy Denton's Blog

Commentary and insights on policy issues in telecommunications and the Internet.

  • Home
    Home This is where you can find all the blog posts throughout the site.
  • Categories
    Categories Displays a list of categories from this blog.
  • Tags
    Tags Displays a list of tags that has been used in the blog.
  • Bloggers
    Bloggers Search for your favorite blogger from this site.
  • Team Blogs
    Team Blogs Find your favorite team blogs here.
  • Login

Debate at the Law Society

Posted by on in Industry News
  • Font size: Larger Smaller
  • Print

Should video entertainment coming to people through the Internet be regulated under the Broadcasting Act? I debated Jay Thomson of the CMPA yesterday before a group of entertainment industry lawyers. The topic was Resolved: that over the top television should not be regulated under the Broadcasting Act.The scene was in Toronto at the Law Society of Upper Canada's continuing education program.

The legal argument for regulating the Internet under the Broadcasting Act is a slam-dunk. Who says full motion video says "programming" and who says "programming" says "broadcasting". The legal conclusion is likely best challenged by means of a constitutional argument that point-to-point communications is not within the competence of the federal government to regulate as "broadcasting", and that the right of Canadians to speak to one another through video cannot be made subject to a federal broadcasting licence.

The belief of the other side (both as expressed by Jay Thomson an by supporters of that position) is that a regulation could be framed to capture efficiently the extremely small portion of the Internet in which they are interested - the Netflixes of the world. Aunt Dorothy's uploading of the vacation video and your girlfriend's youtube video of the beach volleyball game could be efficiently excluded somehow from broadcasting licensing.

In that crowd, there was a strong belief that Canada, as a nation, had faced the threat of American programming before, back in the sixties and seventies, when cable television was bringing American programming to Canadian households hungry for wider choices. The moderator of the debate, Peter Grant, had in his youth triumphed at the Supreme Court when the majority declared cable television enterprises wholly within federal jurisdiction. The regulatory instinct remains strong in certain quarters of the Toronto legal profession. We did it once before, they say, and we can do it again.

I doubt strongly that this can be so, but likewise I am certain that, if the Harper government is ever replaced by the Liberal Party, the downtown Toronto cultural industry elite  will use their favourite  party to assert jurisdiction over the Internet to try to save Canadian broadcasting from foreign competition.

I will post my argument as to why we should not try to regulate "over-the-top" programming in another place on this website. Frankly I consider the attempt to be deluded,  and dangerous for the freedom of Canadians to "speak" through the Internet using video. My goal is not to save Bell or Rogers, my goal is to save from direct federal licensing what will become an utterly normal method of human communication - sending videos. And saving them from "regulation" by "exemption orders" is just another method of regulation, as was freely admitted by the pro-regulation side.

My other observation is that the Toronto entertainment lawyer crowd was not curious as to the broader implications of the issues before them. They have one tool in the regulatory tool kit, and they intend to use it. Thus, for example, the idea that we need a Royal Commission or any kind of general inquiry into what is to be done to save the Canadian broadcasting industry was not explored in the time available. Maybe it would have been if there had been a wider debate topic.

In the end I was not persuasive: the room split 57-43 in favour of regulating the Internet under the Broadcasting Act, to save Canadian television from effective competition.

As the old Beyond the Fringe skit went about World War 2, the plummy-voiced RAF officer says to the flight lieutenant: "We need a futile gesture at this stage".

I am persuaded that not all the powers and dominions, thrones, cherubim and seraphim, angels and archangels, will be able to save the obsolete industrial policy we call Canadian broadcasting. But it will not go down before making a last stab for mandatory payments from your wallet to theirs. This is as certain as cold in winter.



Trackback URL for this blog entry.

Timothy Denton is a lawyer by training who practices principally in telecommunications and Internet policy and domain name issues, with a strong concentration on explaining what the technology is and what it means.


  • No comments made yet. Be the first to submit a comment

Leave your comment

Guest Tuesday, 07 April 2020
You are here: Home Timothy Denton's Blog Debate at the Law Society