Source : Cablecaster Magazine
Judge sets year-long grace period on ruling
MONTREAL - A Quebec Court judge has thrown a roadblock into efforts to stop the pirating of foreign satellite TV signals, ruling that two sections of the federal Radiocommunications Act outlawing the practice infringe upon freedom of expression.
In a 103-page decision handed down Thursday, Judge Danielle Côté said that two sections of the Act violate the Canadian Charter of Rights and Freedoms, though she set a one-year grace period before the ruling is to take effect.
She dismissed the case against two Quebec men who were charged in 1998 of selling and personally using decoding equipment to access U.S. satellite TV signals from DirecTV.
Lawyers for the Canadian Association of Broadcasters (CAB) are studying the decision, which CAB spokesperson Pierre Pontbriand called "significant for the entire system and which could have a determining impact" on efforts to control pirating.
The Coalition Against Satellite Signal Theft has estimated that between 750,000 and one million Canadian households are stealing satellite signals, costing the industry up to $500 million a year in lost subscription fees and artist royalties.
A decision in the case was eagerly awaited because the Court was specifically asked by the Quebec Court of Appeal to consider the constitutional arguments of freedom of expression.
Charges against Jacques D'Argy and Richard Thériault, both from the Drummondville region midway between Montreal and Quebec City, were originally dismissed in 2000 when the same judge ruled the Act provisions applied only to non-authorized decoding of signals from Canadian distributors.
In a similar case before the Supreme Court of Canada, the court ruled the provisions apply to all coded satellite signals. So the Quebec Court of Appeal sent the Drummondville case back to Judge Côté for a new trial last June, asking that freedom of expression arguments be heard.
The judge noted that the accused were operating in the so-called black market, as they were not paying a subscriber's fee to DirecTV and thus could not claim a lack of criminal intent, as they might if they had been operating in the so-called grey market (using a U.S. postal address and paying a subscription fee).
Thus, she wrote, the accused would be found guilty, unless they were "saved" by the Charter.
In examining freedom of expression arguments, she noted the Supreme Court of Canada recognized that the right to receive information constitutes an essential element of freedom of expression.
But while it may be true that the right to receive information is dependent upon the author's or sender's right to decide upon the recipients, the sender must also be able to freely make that decision.
In this case, DirecTV might want to allow its signals to be available but it cannot because the Broadcasting Act does not allow it, she wrote.
She also dismissed arguments that decoding itself is not an expressive act, saying that the fundamental purpose of decoding is to enable the person to receive information.
Judge Côté extensively reviewed the efforts by Canadian legislators to protect Canadian culture and to support a home-grown broadcasting industry.
As far back as 1932, when the Act was first introduced, Prime Minister R.B. Bennett referred to the need to assure "complete Canadian control of broadcasting from Canadian sources, free from foreign interference or influence."
This goal cannot be brushed aside, she wrote, noting the numerous studies on Canadian broadcasting over the years.
However, she said, "the legislator has never stopped to consider the true consequences of a total decoding ban on the citizen's freedom of expression in regards to the right to receive available ethnic programming", referring to the CRTC's recent decision affecting, among others, the Italian broadcaster RAI.
At the same time, Canadian broadcast policy specifically refers to Canada's multiculturalism, she wrote, and links its protective policy to the proximity of the U.S. market and its possible effects on Canadian culture.
In this light, she questions whether the government used the "least intrusive means" possible to satisfy the objectives of Canadian broadcast policy.
Only recently, she said, have legislators begun to examine the impact of existing policy on ethnic communities and on individual citizens.
It was raised last spring in debate over Bill C-2, when representatives of the Italian, Lebanese, Venezuelan and Portuguese communities all complained about the restrictions on receiving foreign satellite TV signals.
Evidence of this slowly awakening awareness, she wrote, is that the Commons committee studying the bill decided to delay further action in order to study alternatives, "despite being pressed by industry people to adopt the bill".
"While one can understand the necessity of protecting the Canadian broadcasting system against American influence, this protection appears less necessary in regards to networks aimed at ethnic communities, except, obviously, where one wants to protect the economic interests of the networks approved by the CRTC."
The government, the judge wrote, did not show that a less sweeping ban on decoding which would take into account the interest of ethnic communities could not be just as effective in protecting the Canadian industry.
Nor has it shown that placing restrictions on individual citizens using the grey market is necessary to achieve broadcast policy goals.
"Given the prejudicial effect on individual citizens, from the fact that…the government did not intend to achieve this effect [to criminalize individual citizens using the grey market] but rather to target commercial activities, the Court considers the government has not acquitted itself of the burden of proof as to the least intrusive means…
"Under the circumstances, the Court is of the opinion that the government did not prove that the measure chosen is 'carefully adapted in such a way that a breach of rights does not go beyond what is necessary'."
UPDATE: The industry responds
The Coalition Against Satellite Signal Theft (CASST) today strongly urged the Federal Government to immediately launch an appeal of the above decision.
"This decision doesn't change the fact that it's still illegal to steal signals from cable or satellite companies," said CASST co-chair Luc Perreault, executive vice-president of Pelmorex Ltd.
"We strongly urge the government to appeal this decision immediately in order to ensure a made-in-Canada broadcasting system is not undermined by these arguments," added Perreault. "This is a system that allows us to create and present Canadian programming, and to protect the rights of copyright holders around the world."
"This underscores the need for the government to reintroduce its bill to amend the Radiocommunication Act, as expeditiously as possible," said Harris Boyd, CASST co-chair and senior v-p industry relations for the Canadian Cable Telecommunications Association.
"This decision, if allowed to stand, will ultimately affect tens of thousands of Canadians working in our domestic broadcasting industry and related industries," added Chris Frank, CASST co-chair and senior v-p regulatory and government affairs for Bell ExpressVu.
In a press release, CASST noted:
* A one-year moratorium is attached to this decision. This means that dealing in illegal satellite equipment is still a criminal offence.
* This ruling is not binding on courts in any other province than Quebec.
* The Federal Court of Canada is already considering this matter in relation to other cases. Its ruling in those cases will apply in all provinces.
* U.S. satellite company DirecTV has said that it isn't interested in selling to the Canadian market, since the U.S. channels they carry don't hold programming rights for the Canadian market, and that they consider Canadians who provide a false U.S. mailing address in order to subscribe to their service to have committed a fraudulent act.
In April 2002, the Supreme Court of Canada unanimously ruled that unauthorized reception of encrypted satellite signals is illegal. Since the ruling, the entire broadcasting industry has worked closely with the Government to stop signal theft. CASST co-chairs stressed today that their resolve to curtail signal theft in any form will only be strengthened by this temporary set-back, said the release.
CASST is made up of the CAB, CCTA, Canadian Film and Television Production Association, Canadian Television Fund, Canadian Motion Picture Distribution Association and their members. It also includes A&E Television Networks, Bell ExpressVu, CBC/Radio-Canada, Canadian Motion Pictures Distributors Association - Anti-Piracy Operations, Canadian Retransmission Collective, Directors Guild of Canada, DirecTV, North American Broadcasters Association, Society of Composers, Authors, Music Publishers of Canada, Star Choice and Vidéotron ltée.
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Cablecaster Magazine