Sandra Richmond is a member of the KNOWlaw Group of the Toronto law firm of McMillan Binch.

While industry attention has been focused on the crtc’s fall hearings on television policy, the commission’s hearings on the regulation of new media shouldn’t escape your notice.

The crtc has embarked upon an ambitious public consultation exercise into the world of new media products and services, including the Internet. (See www.crtc.gc.ca/eng/bcasting/notice/1998/P9882-0.TXT or check Telecom Public Notice crtc 98-20 and Broadcasting Public Notice crtc 1998-82.)

The crtc has stressed that it has no preconceived notions about how new media should be defined or what role, if any, it should play in regulating new media services, whether delivered through the Internet or across private corporate networks. What it does suggest, though, is that any new broadcasting content services should meet the cultural objectives of the Broadcasting Act.

While some people argue that the crtc is overreaching even to suggest that it should and can regulate the Net (or part of it), others think that the commission has a right to regulate. But even those who believe in regulation admit that the real challenge will be in defining what constitutes ‘broadcasting’ for purposes of the Net and deciding how to actually regulate a decentralized universe.

Some radio stations are already simulcasting on the Net. Video is available but television broadcast-quality programming over the Net is not technologically or financially practical for most people. However, such cybershows may not be far off.

Once these programs become popular, it may be just a matter of time before they start attracting advertising dollars away from traditional broadcast media. That’s when broadcasters and cable companies are likely to insist that there should be regulation of such services on the Net, or that they themselves shouldn’t be regulated so heavily.

Regulating Webcasters

But it is too simplistic to assume that the Net is so similar to traditional television broadcasting that the criteria and process of television broadcast regulation can be applied unthinkingly to the Net.

First, the start-up and operating costs of traditional broadcast undertakings and of broadcast programming are significant. And while development costs for some multimedia products and services can be considerable, setting up a Website and sending content over the Net does not always require a large investment.

Second, traditional broadcasters are necessarily fixed in a specific place. Netcasters don’t have to be. They can work from anywhere and be accessed from anywhere.

Unless a government controls citizen access to computers or the Net, the only practical way it can license Net use is through Internet service providers. isps, at least, have to have a physical location, equipment and employees. But isps would argue that it is both wrong and impractical to make them responsible for the content that is distributed through them. (And imagine the outcry if they started monitoring the content of people’s e-mail!)

Third, broadcasters are used to being regulated (even if they’re not always happy about it). The philosophy of the Net is fervently against regulation and certainly against regulation by national governments.

The example that many people use to support the need for regulation of the Net is the proliferation of, and easy access to, child pornography on the Net. But the anti-regulation side points out that the problem is international – the material can come from anywhere.

And, if a site is blocked, consumers can go elsewhere, or the transmitter can quickly change its Net address and be operational again.

It would be more effective, they argue, to improve existing laws – for example, allow the police to obtain cross-border search warrants more quickly – or to develop technological tools like ‘Net Nanny’ to allow for informed consumer choice.

They believe that, if regulation is necessary, it will be achieved through self-regulation or market regulation. For example, the Canadian Association of Internet Providers has a code of conduct for its members. And many feel that because isps compete for customers, if they don’t provide some self-regulation and response to customer concerns, the customers will go elsewhere.

Certainly the crtc public notice contemplates some amount of self-regulation. However, it also warns that the proliferation of new media and their ability to be delivered globally as well as domestically has not undermined the Broadcasting Act’s objectives to support the use of Canadian resources and to promote Canada’s cultural identity in broadcasting.

Supporters of regulation point out, too, that to argue that the crtc is proposing to regulate the Net is overstating the case. The crtc does not regulate the radio and television spectrums; it regulates Canadian broadcasting on them. And even if you can argue that monitoring and enforcing rules for a particular medium will be difficult, it doesn’t automatically mean that the medium shouldn’t and can’t be regulated.

It does mean, though, that for regulation to be successful there will have to be some creative and careful thinking about how to define broadcasting for the purposes of the Net. And the crtc has acknowledged that what has worked in the past may not work for new media services.

Promoting

Canadian culture

Even the idea of ‘regulation’ through the promotion of Canadian culture on the Net poses problems.

There are already a number of tax incentives and funding sources available for new media (for example, the Bell Broadcast and New Media Fund, the Stentor Alliance New Media Funds and the Canadian Independent Film and Video Fund). But one option the crtc wishes to examine is whether online distributors of new media in Canada should be required to contribute to the production of Canadian new media products and services.

Much as broadcasters are required to spend a specified amount of their revenues on Canadian-content programming and cable companies are required to contribute to Canadian programming through the Canada Television and Cable Production Fund, isps might be required to contribute certain amounts – for example, based on subscriber revenues – to a fund that would support the development, production and distribution of Canadian-content new media services and products.

This is likely something that broadcasters and cable companies would support – to spread the burden of supporting Canadian culture among all and to ensure a level playing field.

However, again, it would require some sort of regulation – even if not quite to the degree of licensing – and enforcement, both of which could be costly. In addition, imposing this requirement on isps could result in higher access charges for both private consumers and businesses – and decreased access to the Net.

As well, isps could argue that traditional Canadian-content regulations were aimed at helping people who otherwise might not have access to the media. That is not a problem with the Net – even 13-year-olds have their own Websites these days.

Even if a contribution system is put in place, it may be difficult to develop the criteria for qualification as a Canadian service. Will the Website have to be created by a Canadian? Controlled by a Canadian? Distributed through a Canadian isp? Will a certain amount of the content have to be Canadian? Given how easy it is to change the content of a Website, how will it be monitored?

The crtc might be unrealistic in hoping that this public consultation will help it resolve some challenging and complex issues. And it may turn out to be true that there is no place for crtc regulation on the Net. But even if there are no immediate answers these are significant issues to examine and an important discussion to have.

(This article contains general comments only. It is not intended to be exhaustive and should not be considered as advice on any particular situation.)