Election call puts communications laws and policies in limbo

March 28, 2011

Last week’s non-confidence vote meant not only the fall of the government and the dissolution of the 40th Parliament, but the death of a number of important communications-related bills and policy initiatives.

In a recent blog post, Professor Michael Geist provided an inventory of incomplete government initiatives, noting that it is unclear when – or if -- some of these may be reintroduced following the election.

Here’s our take on which of the Harper government’s communications-related initiatives may be truly dead, and which, like the Monty Python parrot, may be “just resting.”

The digital economy strategy

While the proposed 2011 budget claimed that it was setting the stage for the release of Canada’s Digital Economy Strategy later this spring, by introducing new measures to support  education, the adoption of information and communications technologies and content creation, the budget was silent with respect to other factors seen by many as necessary elements of a digital strategy, including spectrum policy and broadband development initiatives.

Given industry expectations and the fact that Canada is currently seen as behind many of its major trading partners as lacking a comprehensive digital strategy, such an initiative will likely continue post-election, although its scope and content could obviously vary if there is a change in government.

Revisions to Canadian ownership requirements

In June of last year, the government issued a consultation paper, entitled Opening Canada’s Doors to Foreign Investment in Telecommunication: Options for Reform, which proposed three possible scenarios for reform of Canadian ownership requirements for telecommunications common carriers:

  • increasing the allowed level of foreign ownership in broadcasting and telecommunications undertakings to 49%,
  • exempting start-up and small industry players from existing ownership restrictions (but retaining them for incumbents), or
  • removing Canadian ownership restrictions entirely for telecommunications providers (but retaining them for broadcasters)

Since receiving submissions from interested stakeholders last summer, the government had said little about Canadian ownership reform, other than that it would decide the question in concert with the terms of the 2012 spectrum auction.

If the current government returns to power, one might expect Canadian ownership reform to proceed along much the same timeline as before; however, a Liberal government or coalition of current opposition parties may be much less enthusiastic about increasing foreign ownership levels and may not proceed with the initiative.

Copyright reform

With the dissolution of Parliament, Bill C-32 became the third copyright bill in recent memory to die on the order paper, this time after comprehensive hearings at the Committee stage.  As is always the case with copyright legislation, stakeholders were deeply divided with respect to many of the Bill’s features, including the fair dealing and “digital lock” provisions.  Given the strength and activity of the reform lobbies, and the real issues being presented by the rapid development and acceptance of digital technologies, it seems a certainty that some form of copyright bill will be reintroduced by the next government, but the content of the bill could obviously be affected by a change in government, and the bill is unlikely to be a first priority for any government.

Lawful access bills

The last session of Parliament saw the introduction – or reintroduction – of a string of bills broadly relating to the roles that telecommunications service providers may play in the investigation and enforcement of crimes and matters of national security.  Among the dead bills are:

  • Bill C-50, which dealt with criminal procedure related to obtaining warrants to intercept private communications
  • Bill C-51, which would have granted law enforcement and national security agencies new powers relating to the interception of private communications and the preservation and production of telecommunications data
  • Bill C-52, which would have required all telecommunication service providers to have the technical capability to intercept private communications under warrant, as well as, more controversially, to provide certain subscriber information to police on request

This was the third attempt to pass lawful access legislation.  Canada has been under external pressure from the G8 to enact lawful access legislation, which many countries already have, and internal pressure from the law enforcement community, to provide for policing tools that keep pace with technological development.  Prior to the introduction of the above bills by the Harper government, similar bills had been introduced by the former Liberal government, and by a Liberal private member in opposition.  It seems likely, then, that in one form or another, the powers and obligations contained in these bills will be reintroduced, although the timing is uncertain.

One law enforcement related bill that was successfully passed before the fall of the government was Bill C-22, which imposed reporting obligations on Internet service providers with respect to child pornography discovered in the course of business or reported to them by subscribers or third parties. 

Anti-spam regulations

Although the anti-spam legislation itself was passed before the end of 2010, it has yet to be proclaimed in force, waiting in part for the publication of proposed regulations to clarify a number of the obligations in the legislation.  The Anti-Spam Act had broad all-party support and moved very quickly through the Committee process.  While the publication of the regulations will be delayed by the election, it is expected that, given the broad support of all parties, the proposed regulations will be made public soon after a new government is formed. 

DISCLAIMER: This publication is intended to convey general information about legal issues and developments as of the indicated date. It does not constitute legal advice and must not be treated or relied on as such. Please read our full disclaimer at www.stikeman.com/legal-notice.

Stay in Touch with Knowledge Hub