Internet service providers (“ISPs”) are not subject to Canada’s broadcast regulations, according to a decision recently released by Canada’s top court. In Reference re Broadcasting Act, 2012 SCC 4, the Supreme Court of Canada (the “Court”) confirmed a 2010 decision by the Federal Court of Appeal that held that ISPs are not subject to the federal Broadcasting Act (the “Act”) and therefore not required to contribute to the creation of Canadian content.

The Alliance of Canadian Cinema, Television and Radio Artists, the Canadian Media Production Association, and the Directors Guild of Canada and Writers Guild of Canada raised the following question before the Court: do retail ISPs carry on, in whole or in part, “broadcasting undertakings” when, in their role as ISPs, they provide access through the Internet to “broadcasting” requested by end-users? Subsection 2(1) of the Act notably defines a “broadcasting undertaking” to include “a distribution undertaking, a programming undertaking and a network.” The Act further defines the term “broadcasting” to mean “any transmission of programs … by radio waves or other means of telecommunication for reception by the public …”