Craig McTaggart is a member of the KNOWlaw Group of the Toronto law firm of McMillan Binch.

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Perhaps the most famous integrated circuit ever invented in Canada, the v-chip, has become a technological celebrity among broadcast regulators in Canada and the u.s. The arrival of the v-chip is expected within the next year and it appears to have a lot to live up to.

The hardware itself has gone though no fewer than three ‘retoolings’ in attempts to create a system which is easy for parents to understand and use. At the same time, the classification system that will drive it has undergone similar revisions.

In the last installment of Binchmarks (Jan. 27, p. 12) we discussed the American classification system announced in December 1996. In this installment we will look at the expectations for the Canadian system and some possibilities for the future of the v-chip.

U.S. Guidelines under review

On Feb. 7 the Federal Communications Commission issued a public notice soliciting comments from the public on the acceptability of the u.s. TV Parental Guidelines, the system which went into effect on American tv on Jan. 1. Although a hearing has not yet been ordered, it is widely believed that one is on the way.

A hotly contested issue at such a hearing would likely be whether the proposed system, which relies on producers’ discretion as to age-group suitability, is to be preferred over a system which provides more information about the actual content of programs. Comments are being accepted by e-mail at vchip@fcc.gov.

Canadian system coming soon

Meanwhile, our own tv classification system is in final testing and must be submitted to the crtc by April 30 for implementation for the fall 1997 season.

Long before the u.s. system was put forward, the Canadian industry was testing ratings systems for use with the v-chip (which originally stood for ‘viewer chip’ but is now confused with ‘violence chip’). The crtc’s focus has traditionally been on addressing violence on television and, indeed, the mandate given to the Action Group on Violence on Television was to develop a classification scheme based on violent content only.

This presents compatibility concerns with the u.s. proposal, which also takes mature subject matter and coarse language into consideration. The crtc’s hope that the hardware would be developed ‘with a view to ensuring its fullest compatibility with North American standards’ appears to have been achieved. But the prospect of two different rating systems for programming on Canadian tvs is not particularly appealing given the difficulty of educating the public on the use of one alone. This prospect was probably not lost on members of the industry group developing the Canadian system.

What the Canadian classification system will ultimately look like can only be the subject of speculation since details have been kept top-secret throughout the trials.

What we do know

The implementation of a satisfactory system of program classification remains a condition of the crtc’s acceptance of the Canadian Association of Broadcasters’ Voluntary Code Regarding Violence in Television Programming and the Pay Television and Pay-per-View Programming Code Regarding Violence.

The crtc has stated that it will allow pay and pay-per-view services to continue to use the ratings of the appropriate provincial movie ratings boards for the feature films they broadcast. The classifications of the Regie du Cinema will continue to be used in Quebec.

The crtc has specifically exempted news, sports, talk shows, documentaries, variety programming, music videos and advertising from classification, except for advertising of classified programs.

The actual classification will most likely be done by whoever originates the programming, which in the case of Canadian-originating signals could be a network or a local distributor. American signals redistributed in Canada must either carry the original American coding or be encoded here by the distributor. The distributor could, presumably, apply a different code if it considers one more appropriate than that chosen by the American distributor or producer.

An appeal and complaint process for classifications should be expected and would probably be administered in much the same way as the Canadian Broadcast Standards Council currently administers the cab Voluntary Code.

Could advertising be next?

There is reason to believe that the destiny of the v-chip may not be limited to violence on tv. An American trade paper recently reported that the fcc is also considering proposals for the encoding of hard liquor advertising to allow parents to block it out by means of the v-chip.

This will surprise no one who has contemplated the potential for the chip. Almost any number of codes could be embedded in the vertical blanking interval in the signals received by your tv. Today, the codes might cover violence, sex, language and alcoholic beverages. But there is theoretically no limit on the types of content that could be coded for.

There should be no doubt that, for better or worse, there are parents who would like to be able to block out programs and advertising carrying all sorts of different messages, if the coding were there to support it. Movements to force broadcasters to code for content such as language or lifestyles would likely be met by stiff resistance on freedom of speech grounds.

The consequences of any blocking on advertising would, of course, wreak havoc on the traditional economics of advertising-supported television as we now know it.

More control for viewers?

The crtc has demonstrated, in step with the wider trend towards deregulation in communications, a preference for industry self-regulation over direct oversight. The v-chip is part of that trend.

The v-chip also presents the possibility of even further deregulation: right into the hands of the ultimate user. In June 1996, the u.s Supreme Court noted in Denver Area Educational Telecommunications Consortium v. fcc that the v-chip allows ultimate viewing choices to be placed in the hands of the viewer.

The ability of viewers to control what kind of programming they receive allowed the Court to strike down a law which required adult programming on local-access cable to be scrambled unless a viewer made a specific request to receive it.

The Supreme Court held that the control of the display of objectionable material in individual homes made possible by the v-chip constituted a less restrictive measure for the restriction of speech, and was therefore to be preferred over scrambling.

The concept of least restrictive means is highly favored by Canadian courts faced with challenges to laws which restrict freedom of speech. The rationale of the u.s. Supreme Court in the Denver Area case may provide one more tool to those seeking to attack broadcasting laws that have the effect of restricting expression. Canada’s experience with limits on expression by tobacco companies gives some idea of the possibilities.

Chipping away at Internet obscenity

Notwithstanding that it may be impossible, the use of v-chip technology in regulating the Internet has doubtless been contemplated in Ottawa.

Software is already available which allows parents to prevent their children from being exposed to certain adult materials on the Net. This, of course, presumes parents who can out-program their children. If Internet information were coded like tv signals, sites containing certain content could be similarly blocked out.

If the functional convergence of cable tv, the Internet and voice telephony ever materializes into the Information Highway (whatever that is), the conceptual leap required to contemplate regulating them all under one umbrella may become considerably smaller. By that time the v-chip may have achieved a level of acceptance among the public that would support attempts to extend it to other media.

In a report released in May 1996, called Building the Information Society: Moving Canada into the 21st Century, Industry Canada stated that offensive content must be dealt with as part of the development of the Information Highway for the general benefit of Canada.

Speaking about offensive content in particular, the report notes that ‘[f]or the longer run, electronic filters such as the v-chip are becoming available to block the entry of such materials onto a home or school system.’ Clearly the application of v-chip technology to the Internet has been contemplated by Industry Canada. Whether it is possible or not may be another matter.

Industry Canada is expected to release a major study of Internet-related liability in Canada by the end of this month. Although the question of whether the Internet should be regulated at all is not within the scope of the study, it may contribute to efforts which are most likely underway at Industry Canada, the crtc and the Information Highway Advisory Council to address offensive material on the Net.

Nobody is sure who among those three organizations is carrying the ball on Internet regulation, nor have any of the political parties taken a high-profile stand on the issue.

The report of the second phase of ihac, expected in 1997, might shed some light on this issue.

Given Canadian Heritage Minister Sheila Copps’ recent statements to the effect that she is willing to ‘do battle’ with the Americans over cultural and trade policies, anything is possible.

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