Radiocommunication Act lacks “teeth”, needs changes, says ExpressVu lawyer

Despite the Supreme Court of Canada’s recent decision confirming that grey and black market satellite TV are illegal, changes are still needed to the Radiocommunication Act to help combat grey and black market activities, according to the winning lawyer in the case. Bill McKenzie, legal counsel to Bell ExpressVu LP in its fight against grey and black market dealers, points out that under the current legislation, it is cumbersome to apply punishment. "It does need work. There are no teeth in the statute. It’s time to fix it," McKenzie tells CCR. "It’s like we did part of the job, let’s get the rest done." The April 26 unanimous Supreme Court decision paved the way for Bell ExpressVu to proceed "very vigorously" with its lawsuit against Cam-Am Satellites and other grey and black market satellite dealers across Canada (CCR Update, April 26/02). The court determined that grey and black market activity was banned under Section 9(1)(c), which prohibits anyone from decoding an encrypted signal unless authorized by a "lawful distributor". McKenzie objects that the Radiocommunication Act doesn’t set minimum damages, and fears that a lot of court time will be wasted in trying to prove damages. Section 18(1)(d) of the Act states that a person who has suffered damage can "sue for and recover damages from the person who engaged in the conduct (contrary to the Act), or obtain such other remedy, by way of injunction, accounting or otherwise, as the court considers appropriate." "Section 18 says an injunction and damages are the remedies," McKenzie notes. "Getting an injunction is straightforward. The question is what are the damages? I’m saying Parliament, let’s sit down, figure it out and write it down. So that except in the most unusual circumstances, the picture’s on the wall, take your number and go. Otherwise, you have five days of evidence with experts on both sides, and judicial time is at a premium." Michael Helm, director general of telecommunications policy at Industry Canada, concedes that the government might want to look at the punitive side of the Act. "In trying to prove damages, you would have to prove first of all that if they weren’t hacking, they would have subscribed to your system, which I understand is difficult. I think it’s fair to say that we’ll be looking at what the industry might like, short – of course – of fooling with 9(1)(c), which the Supreme Court said is just fine. In the way of damages and prosecutions, we’ll try to get that together and put it to ministers and see if they have an appetite to move with it," Helm tells CCR. Following the Supreme Court decision, members of an anti-piracy coalition immediately pressed the government to shut down grey and black market satellite television dealers across the country. The coalition called for a government task force to investigate, apprehend, and prosecute dealers who are breaking Canadian law. The government has expressed an interest in moving quickly on the matter. "The government of Canada, in cooperation with the Canadian broadcasting industry and law enforcement authorities, will work to stop the selling and distribution of devices designed for the unauthorized decoding of satellite television programming," stated an Industry Canada media release following the court’s ruling. "This (the decision) is a blow to those pirates of the airwaves that are selling or distributing illegal equipment designed to steal satellite TV programming," Industry minister Allan Rock said. McKenzie notes that there is nothing stopping the government from proceeding with enforcement under the existing Act, and he expects Bell ExpressVu to seek an injunction against Cam-Am Satellites. As well, he points out that ExpressVu has enough evidence to prove damages, even if an extended court proceeding is necessary. For the time being though, Cam-Am Satellites sought and received an injunction from an Ontario court to stop police from seizing satellite dishes or shutting down distributors pending a constitutional challenge. The injunction is in effect until May 7. Can-Am legal counsel Alan Gold argued the injunction should be extended until the constitutional challenge is heard. A judge is to decide on the matter on May 10. Gold argues the decision violates Canadians’ right to free speech under the Charter of Rights and Freedoms. A case involving the Charter argument has already been argued in Manitoba, according to Port Hope ON lawyer Ian Angus of Angus and Associates. As solicitor for the Canadian Alliance for Freedom of Information and Ideas, Angus explains, "It’s a case where a company which was selling these receivers and equipment to receive American satellite television was charged under the Radiocommunication Act and it’s a lengthy trial...We had two parts to that trial. The latter part being all the evidence related to freedom of expression and all of those arguments." The anti-piracy coalition was expected to rally for legislative changes only if the Supreme Court backed a 1999 B.C. Court of Appeal ruling that legalized the sale of unauthorized U.S. satellite services in Canada (CCR, Nov. 22/01). McKenzie, however, is advocating legislative changes even now that the Supreme Court has confirmed that dealers are breaking the law when they sell dishes to and set up U.S. addresses for Canadians, or sell decoder cards capable of de-scrambling signals without a subscription. See Newsmakers for more on this issue.

Radiocommunication Act lacks “teeth”, needs changes, says ExpressVu lawyer

Broadcast | May 9, 2002

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