Friday, October 29, 2004

Satellite Signals and Free Expression

Some people may have see the brief news item relating to a court decision in satellite signals and freedom of expression. A Quebec man was changed with using one of those pirate cards to pull in a satellite signal from a non-Canadian provider. Under Canadian law, this is illegal. One has to purchase satellite TV from one of the existing licensed providers. The man in question did not dispute the he had indeed used an illegal set up to pull in his satellite signal but argued instead that it was legitimate to do so because the current regulations impinged on his Charter right to freedom of expression. The court accepted this defence but suspended the decision for one year to allow Parliament time to introduce a new law that will be in keeping with the Charter right to free expression.

This is an interesting decision on a couple of grounds. First, it shows how judicial review works in Canada. Rather than simply throwing out the law relating to Satellite TV, the courts have indicated that part of the law contravenes the Charter and indicated to Parliament that the law should be changed. This is the effect of the suspended decision. The man in exonerated by the law, in effect, remains in place unless Parliament choses to do nothing. If Parliament does nothing -- as happened with the same-sex marriage issue -- the decision to eliminate at least part of this law will come into effect in one year's time.

Second, I am interested in the way the courts have construed "freedom of expression." Remember, this law was not challenged by another satellite tv provider but by a person receiving the satellite signal. In effect, he was watching TV. The question I have is: is watching tv expression? Obviously, TV news falls under freedom of speech as would comedy, drama, sport, and artistic shows, among others. My own view is that Parliament should censor TV (or, other media) only in unusual situations and with great care, perhaps with a law that had a sunset clause. In my view, however, this case raises another issue. In effect, the courts have accepted the argument that watching TV is a form of expression that can be protected under the Charter. To me, this seems to trivialize Charter.

Let's look at this issue. Freedom of expression is intended to promote democracy (the ability to critique government without fear of punishments so that government or policy can be changed) or cultural freedom (so as that groups or individuals are not hampered in freely expression who they are). I could be completely wrong but I don't see how either of these criteria are threatened by the current satellite tv law. Is freedom of expression or speech in Canada threatened by not having access to American satellite signals? I'd hazard a guess that 90% of American programming is available in Canada through network television, pay per view, or speciality cable channels. In addition, Canadians can access a wide range of American media through DVD, the internet, radio, film, and print publications. In other words, is there a serious threat to freedom of expression in Canada in terms of access to American culture? I simply don't see it.

Likewise, I don't see any particular problems with freedom of expression in terms of the ability to critique government. We know that the press is biased but criticism of government seems all about us. Moreover, even if the press is biased is anyone under particular threat of being, say, jailed for criticizing the government? Again, I don't see it.

Where, then, does this leave this court decision? It leaves the court in the odd position of arguing that watching TV is expression. Watching tv could be entertainment, it could be communication, it could be educational, but exactly how watching tv is a form of expression eludes me. It leave the court in the odd position of arguing that there is a right watch American tv that is, somehow, not already being provided in Canada. So, according to this court decision, the Canadian Charter upholds the right to watch American tv and any law that infringes on the maximum level of American tv one can watch is an infringement on freedom of expression. Does this not strike one as an unusual use of Charter rights?


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