By Ahmad Hathout
The Federal Court of Appeal has turned down applications filed by foreign streamers which argued a CRTC decision forcing them to disclose their Canadian financials preempted their right to confidentiality.
The court ruled late last week that it was “convinced” by the argument of the attorney general, the CRTC’s legal representative, that the leave to appeal applications were premature because the CRTC decision has not been finalized.
“As a general principle, decisions and orders must be final in nature to be considered by courts of law,” the AG said in a January filing. “A statement about how an administrative decision-maker intends to act in the future has no legal effect.”
In its proposed November order – which is part of the modernization of the Broadcasting Act that also brings streamers under regulation – the CRTC said it believed that online undertakings should publicly disclose annual contributions they make to domestic content and their gross Canadian broadcasting revenues.
Apple and the Canadian affiliate of the Motion Picture Association (MPAC) and its members, including Netflix, Amazon Prime Video, Sony Pictures Entertainment, and Paramount+, argued that, by declaring certain financial information “public” in that order, the CRTC is effectively pre-empting their ability to designate certain competitively sensitive information as confidential as is their right under section 25.3 of the Broadcasting Act.
While the law provides “presumptive protection” for such information, the CRTC’s rule imposes “presumptive disclosure,” Apple argued, adding it flies in the face of the case-by-base analysis on which the regulator must embark to make those decisions while leaving companies with no procedural recourse as provided by section 25.3 of the new Broadcasting Act.
“Apple is very concerned regarding the commercial sensitivity of its revenue and programming expenditure information, over which it maintains strict confidentiality,” it said in that submission. “The current market for online undertakings is highly competitive, with online and traditional undertakings all vying for both customers as well as common production resources, which makes the information far more competitively sensitive than information that previously may have been published by Canadian broadcasters.”
The November decision also upheld a preliminary view that the CRTC should expand the existing point system, which defines what makes programming “Canadian.” The commission also determined that a minimum ownership of 20 per cent in the programming’s copyright by Canadians was sufficient for that end.
