Province cannot force Internet service providers to block access to websites: online communications fall under exclusive federal jurisdiction – media, telecommunications, computers, entertainment


In Attorney General of Quebec c. Canadian Wireless Telecommunications Association, 2021 QCCA 730, the Quebec Court of Appeal confirms that a province cannot force Internet service providers to block access to unauthorized gambling sites. The Court confirmed that exclusive federal telecommunications jurisdiction extends to online communications, clarifying legal uncertainty over constitutional jurisdiction over the Internet.

Facts

In Canada, lotteries and games of chance are prohibited by article 206 of the Criminal Code. However, under section 207 of the Criminal Code, provincial governments have the capacity to organize, manage and operate a lottery system or license to do so. In Quebec, the conduct and management of lotteries are delegated to Loto-Québec, a Crown corporation.

On May 17, 2016, the National Assembly adopted Law mainly concerning the implementation of certain provisions of the budget speech of March 26, 2015, an omnibus bill. It contains provisions amending the Consumer Protection Act (the “CPA”) by adding sections 260.33 to 260.37. These sections oblige Internet service providers to block access to unauthorized gaming sites, according to a list of sites established by Loto-Québec. One of the government’s apparent objectives at the time was to channel the gambling market into a controlled circuit, with the aim of combating the gradual decline in public revenues.

A few months later, the Canadian Wireless Telecommunications Association, an association of some 20 Canadian telecommunications, radio and broadcasting companies, filed an application for nullity.

The first instance decision

On July 18, 2018, Judge Pierre Nollet of the Superior Court invalidated article 260.35 of the LPC. Justice Nollet ruled that the “pith and substance” of the provision is to require Internet service providers to block Internet users’ access to gaming sites considered illegal by Loto-Québec. Although the provision is included in the CEA, Justice Nollet is of the opinion that the link between the provision and provincial jurisdiction in matters of consumer protection is “superficial, even opportunistic”. [our translation] He finally concludes that section 260.35 falls within the exclusive legislative powers of the federal government in matters of telecommunications and criminal law. In addition, he adds that blocking a signal infringes on freedom of expression and that the provincial legislator does not have the power to force Internet service providers to violate the rules. Canadian Charter of Rights and Freedoms.

The decision of the Court of Appeal

On May 5, 2021, the Court of Appeal confirmed Judge Nollet’s decision. Proceeding according to the established methodology for the division of powers, the Court first determined that the “pith and substance” of the legislative provision was to allow Loto-Québec and the Régie des alcools, des courses et des jeux (the council in charge of regulating alcoholic beverages, games, professional combat sports and horse racing in the province) to force Internet service providers to prevent Quebec citizens from accessing signals emitted by site operators games. A detailed analysis of the extrinsic and intrinsic evidence reveals that the real purpose of the provision is not consumer protection. As for the analysis of the legal effects of the provision, the Court of Appeal confirms the Superior Court’s conclusion that blocking access to sites considered illegal by Loto-Québec to Quebec citizens only would have significant consequences on management. and the operation of networks and equipment. of Internet service providers, and might in fact be impossible to achieve.

Then, the Court of Appeal determines which heads of federal or provincial jurisdiction the provision relates to. To do this, the Court examines the files of the Supreme Court of Canada and the Judicial Committee of the Privy Council concerning the transmission of radio signals, images, radio waves or other. He concludes that the federal government’s exclusive jurisdiction over telecommunications also extends to the transmission, reception and retransmission of Internet signals.

Asked about the evolution of the influence of cooperative federalism on the Canadian constitution, the Court of Appeal qualified the scope. The Court notes that the federal competence in matters of telecommunications is of a particular nature because of its national dimension, and therefore hardly compatible with cooperative federalism.

In light of these findings, the Court of Appeal considers that it is neither necessary nor appropriate to proceed, as the trial judge did, to an analysis of the connection of the provision to the criminal law.

Provincial Internet Regulations

Is the conclusion of this decision that the other provisions of the CEA – and indeed any other provincial law in general – cannot apply to the Internet? After all, this decision leaves no doubt as to the decidedly exclusive nature of the federal jurisdiction over telecommunications.

The Court of Appeal gives food for thought on the subject in obiter, where he wrote that it is possible “that the exclusive federal jurisdiction over telecommunications cannot override a validly enacted provincial law that would regulate certain transactions or conduct on the Internet, for example, under the jurisdiction of the legislatures over the Internet. property and civil rights ”. She then distinguished between regulating the Internet as a mode of communication, which would fall under federal jurisdiction, and regulating the content on it. In the latter case, the provisions in question could, depending on the circumstances, fall under provincial jurisdiction. The Court of Appeal suggested that this could potentially be the case with respect to “certain aspects of the content of online contracts, even defamation”. [our
translation]

Conclusion

This decision makes the Quebec Court of Appeal one of the first Canadian courts to directly address the issue of constitutional jurisdiction over the Internet. The decision reminds provincial legislators working to adapt their legislation to new technologies that the regulation of Internet service providers in their role as Internet content service providers is the prerogative of the federal government.

To view the original article, click here.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.


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