ISPs, Internet advertisers lay down fire over Competition Bureau draft guidelines

Internet service providers and Internet advertisers are taking the Competition Bureau to task over proposed new guidelines that could make ISPs liable for online content and prevent foreigners from visiting some Canadian web sites. The regulatory battle ignited this summer when the bureau received some angry responses to its proposed new guidelines for Internet advertising. Earlier this summer an official with the Competition Bureau described the draft guidelines as non-contentious (CNM, June 14/01). But that’s not a view shared by the Canadian Association of Internet Providers (CAIP) or the Internet Advertising Bureau of Canada (IABC), which fear the proposed regulations would treat electronic publishers like newspapers, with the same rules governing the publication of off-shore advertising that might be misleading. "The Bureau needs to be absolutely clear that, in the absence of any feasible editorial control, ISPs are not publishers," CAIP writes in its July 28 response to the bureau’s document, Staying ‘On-Side’ When Advertising On-line. "They cannot technically, feasibly or constitutionally review terabits of data flowing through their routers. There is no room for equivocation on this. The bureau must understand that, in the absence of editorial control, ISPs are not publishers or otherwise parties subject to the Act as regards false or misleading representations." Key to CAIP’s argument is that ISPs have no control over data packets passing through their facilities. Even if they wanted to, the association argues that it’s not possible in the current Internet architecture to determine what content is contained within each packet. "The idea of looking through billions of packet headers for offensive content is akin to trying to pick up the Gross National Product with a set of tongs. The tool is not in the same order as the task," the group writes. That argument will likely carry some weight given a 1999 decision by the Copyright Board which held ISPs blameless for copyright infringement on musical works (CNM, Nov. 9/99). Other points raised by CAIP in its submission could prove less convincing. In a section discussing the liability of ISPs which also operate portals, the lobby group stresses that portal advertising managers aren’t analogous to their print counterparts. Unlike print advertising, the majority of online advertising is in the form of banner ads, with the relevant content hosted by the advertiser and not the portal. Since online account managers have no editorial control over sites not hosted by them, they should not be held liable if material linked to by banner ads is found to be misleading. That argument may not wash with bureau officials. Under the Canadian publisher’s exemption, newspaper account managers aren’t liable for misleading advertising sold to Canadian companies. However, in the case of advertising accepted from companies outside our borders the bureau places an additional burden on publishers to reasonably ensure that advertising is truthful. While the number of ads in a rotating banner on a portal site may be many times greater than in the print world, the bureau may yet decide to hold online ad managers to that additional commitment. For its part, the IABC is urging the Competition Bureau to clarify any rules governing access-blocking to certain advertising. In its proposed guidelines, the bureau suggests that foreign advertising not intended for a Canadian or other audiences could be suppressed using "screening technologies". IABC warns that blocking access to web sites could result in less Canadian content being made available to global visitors, and the demise of some web publishers. Geo-blocking prohibitively expensive "Publishers are struggling to gain revenue to sustain the content they provide free of charge (in most cases) to web site visitors. The added burden of increasing their technological investment to block access for either a newly created web site or for an established/existing web site, could prove to be cost prohibitive or even cause the potential demise of some web site publishers," the organization writes. IABC also wants the guidelines to distinguish between content and commercial web sites. In the case of a content site, such as a portal, IABC recommends that liability for misleading advertising rest with the advertiser, and that content sites operated by retailers and manufacturers be liable for misleading representations on their own site. To date, the industry’s submissions have not been made public though comments were due July 28. Only CAIP and IABC have furnished copies to CNM, though confirmed submissions by Sympatico-Lycos and the Association of Canadian Advertisers will likely come to light soon.

ISPs, Internet advertisers lay down fire over Competition Bureau draft guidelines

Broadcast | September 6, 2001

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