Net neutrality changes in U.S. could change Canadian law in future by Alexia Kapalos
Jan 10, 2018
Source: Canadian Lawyer Magazine
The Federal Communications Commission’s recent decision to dismantle net neutrality regulations in the United States is a subject of controversy among internet service providers, subscription networks, civilians and lawmakers. This decision could potentially create a ripple effect in the future for Canadians — but how?
The FCC’s changes mean that ISPs in the U.S. will be able to discriminate service to content providers. This allows ISPs to play the role of “internet gatekeepers” by being legally allowed to charge for specific and faster access to websites — think of a slow lane and a fast lane — two tiers of internet service speed or services online.
In Canada, where there are net neutrality laws in place, the American dismantling of net neutrality potentially means Canadians will feel some of the changes, even with these laws in existence here.
“I see the United States becoming a very divided internet in terms of ISPs selling packages to specific content [providers], not being able to access certain websites unless there’s payment made,” says Mark Hayes, partner at Toronto-based Hayes eLaw LLP. “I think there could end up being a lot of competitive pressure put on the Canadian industry to look at the same kind of thing.”
Hayes predicts that if ISPs urge lawmakers to loosen net neutrality regulations set forth in the Telecommunications Act in s.36, academics and public interest groups might push back to protect these laws since they affect the interests of Canadian consumers and businesses.
He also foresees a possible increase in cost for online streaming services, such as Spotify or Netflix for instance, since those service providers will need to offset costs to enter the possible internet “fast lane” to provide adequate streaming access. This is how consumers could be affected.
Hayes adds that even with something as borderless as internet communication, in general, if the U.S. goes in one direction, “it’s difficult for Canada to take a completely contrary position.”
Michael Geist, law professor and Canadian research chair in internet and e-commerce law at University of Ottawa, anticipates that Canadian online businesses and services will feel the change more so than consumers.
“Canadian businesses could find themselves subject to a two-tier internet or a non-neutral internet to do business in the United States,” he says.
He also predicts that this will discourage these companies from expanding online to the U.S. Geist referred to OutTV’s predicament when faced with the net neutrality changes.
OutTV, a Canadian television channel specializing in LGBTQ content, had plans to expand their brand to the U.S. — a plan that was largely based on streaming possibilities. No more net neutrality directly impacts the channel’s expansion plan due to the impact on streaming abilities, as well as being plagued by uncertainty for future expansion to an American market since they depend on a neutral internet to reach customers south-of-the-border.
This example Geist shared illustrates how Canada’s ability to directly compete with American content providers in this environment will directly impact business.
The prospects for new innovations online from Canada could be stunted too, he predicts.
“The concern is the Canadians that often look for some of these new services to come forward might find that some of them don’t because in a non-neutral internet, they have a hard time gaining any sort of traction,” Geist says. “It’s one of those things where it’s hard to know even what you’ve lost or what the price is because it’s hard to know what won’t happen based on the fact that ISPs might engage in some of these non-neutral activities.”
Canadian online content services and businesses will either have to pay U.S. ISPs or try to survive in the slow lane of bandwidth.
Currently, Canada or the CRTC has no known plans to rid the law of net neutrality, even with this sharp move for a more segmented internet in the U.S. or with competitive pressure for Canadian businesses, says Hayes.