Satellite TV grey marketing to get its day before the Supreme Court of Canada

A landmark Supreme Court of Canada case into the legality of grey market satellite TV is being cast as a battle between the defenders of free speech and those purporting to uphold Canadian culture and broadcasting. On Dec. 4, Canada’s highest court will hear arguments from the Crown and Bell ExpressVu LP arguing why the B.C. Court of Appeal erred in December 1999 when it ruled that Vancouver dish dealer Can-Am Satellites could legally sell unauthorized U.S. satellite TV services to Canadians (CCR, Jan. 17/01). Following two decades of arrests, civil cases and lower court decisions, the Supreme Court will finally decide if it’s legal to buy DirecTV and other foreign satellite services in Canada (CCR, July 4/01 & CCR, Apr. 26/01). Having a definitive ruling won’t necessarily be the final word, however. If the Supreme Court effectively legalizes grey marketing, Ottawa may have little choice but to introduce new legislation, or rewrite ambiguous clauses within the Radiocommunication Act, in the interests of protecting the Canadian broadcasting system. Bell ExpressVu’s VP and general counsel says in the "unlikely event" of the Supreme Court siding with Can-Am, the broadcasting industry will have to decide what to do next. "I think everyone in the industry will have to examine the ruling and determine its impact on Canadian broadcasting policy as well as Canada’s obligations internationally, and more importantly, on Canadian culture and the economic ability of Canadian broadcasters and program creators to survive," says Ian Gavaghan, adding that it’s too early to discuss whether his company would lobby for new grey marketing legislation. Bell ExpressVu’s attorney in this case, Bill McKenzie, says whenever the Supreme Court strikes down legislation, it inevitably falls upon governments to accept the new status quo, or draft new legislation. Even if that were to happen, he adds that the Radiocomm Act isn’t the only legislation available to fight grey marketing. "Copyright infringement is one. Another is a tort law called Intentional Interference with Business Relations," explains McKenzie. "But I would think it reasonable that the government take a look at (the Radiocomm Act) because Section 9(1)(c) is an easy way of doing it … because there’s a civil cause of action right in the Act." The crux of this case rests on the interpretation of one clause within the Radiocomm Act – Section 9(1)(c), which prohibits anyone from decoding an encrypted subscription programming signal unless authorized by the lawful distributor. At issue, is the meaning of the term "lawful distributor." The B.C. Court of Appeal concluded that only the unauthorized decoding of Canadian satellite signals is banned. Since U.S. companies such as DirecTV Inc. and Dish Network aren’t lawful distributors in Canada, the court ruled that decoding their unregulated TV signals is not a violation of the Radiocomm Act.Other courts prefer a more broad interpretation of the legislation, saying the decoding of foreign signals is absolutely prohibited, since there is no legally recognized distributor to give permission. The federal government has even waded into the issue. In a letter to the Supreme Court, the Attorney General of Canada attempts to clear up any ambiguity in the law by insisting that it was Parliament’s intent to outlaw grey marketing in Section 9(1)(c). "They (the Attorney General) have indicated that the intent of the Canadian government was that 9(1)(c) is an absolute prohibition," says Gavaghan, "and we’ve had interventions by DirecTV and CMPDA (Canadian Motion Picture Distributors Association) which illustrate that the absolute prohibition interpretation is consistent with Canada’s international obligations and consistent with copyright structure." Can-Am and its supporters argue that if a criminal law isn’t clear, then the law should be interpreted narrowly and in favour of the accused. In its written arguments to the Supreme Court, Can-Am maintains that Section 9(1)(c) is meant to fight black market piracy and not grey marketing. It writes: "To interpret it as a censorship offence in the face of overwhelming judicial opinion to the contrary where the matter has been fully argued on the merits, and which would have profound Charter implications, millions of Canadians would be labelled criminals, and Canada would be the first democratic nation by a tortured interpretation of language to have erected a Berlin Wall made up not of bricks but the words of section 9(1)(c) of the Radiocommunication Act… If Parliament wants to erect a Berlin Wall along the 49th parallel, nothing could be simpler than an amendment to the Radiocommunication Act, section 9. Then the Canadian public would have notice of what is going on, and the chance to voice its opinion." Can-Am is also fighting this battle on the constitutional front, claiming that outlawing the receipt of foreign TV signals violates Canadians’ right to free speech. One of Can-Am’s allies, a group calling itself the Canadian Alliance for Freedom of Information and Ideas (CAFFII), argues in its intervention to the Supreme Court that this case is about a Canadian’s right to acquire news and information from anywhere in the world, specifically religious, musical or ethnical programming that is not currently available in Canada. The Supreme Court is expected to release its written decision on the case by the spring.

Satellite TV grey marketing to get its day before the Supreme Court of Canada

Broadcast | November 22, 2001

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Satellite TV grey marketing to get its day before the Supreme Court of Canada

Broadcast | November 22, 2001

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