GATINEAU – Without indemnifying broadcasters and distributors and limiting their legal liability, ongoing development of a national emergency alerting system may be at risk, the CRTC’s hearing on Pelmorex Communications Inc.’s licence renewal heard this week.
But Commission chair Konrad von Finckenstein (a former judge) suggested that the whole liability issue may in fact be a red herring.
David Townsend, a professor in the Faulty of Law at the University of New Brunswick, who was appearing with the Canadian Association for Public Alerting and Notification (CAPAN), agreed.
“It’s overblown, but when parties are refusing to participate and really help the public interest to the extent they truly can, maybe we’ll have to capitulate and legislate to offer that kind of protection,” he said in response to a question from the CRTC chair.
Pelmorex, along with the broadcasters and distributors, want to limit their exposure to liability in case an emergency alert turned out to be wrong, caused damage and another party sought damages. They say they are only the carriers of the alert, and it should be the originator of the alert who bears the responsibility.
CAPAN addressed the liability issue in its presentation to the CRTC during the second day of Pelmorex’s licence renewal hearing, noting that it believes the “actual legal exposure is likely quite low.” It suggested, however, that because of this heightened concern, the Commission champion the development of model legislation limiting liability exposure of message issuers, aggregators and broadcasters participating in the NAAD system.
In its opening remarks, Townsend pointed to British Columbia’s Emergency Communications Corporations Act as a good starting point. While he acknowledged that the Act is designed for downstream distribution protection, any new legislation “should try to offer liability protections for all the participants within the scheme, public and private” and “would shelter activities undertaken in good faith, but not activities amounting to gross negligence and intentional wrongs.”
Broadcasters and distributors spoke out about possible liability issues on Day 1 of the Pelmorex hearing.
Ken Engelhart, senior VP of regulatory at Rogers Communications Inc., noted that it’s a question of risk. He suggested the system could be set up in way to limit liability as Alberta has done through legislation or Nova Scotia has through contract.
“And we have to make a decision as companies if we don’t get that indemnification or absolution of liability whether we go ahead or not. There is a certain amount of risk involved,” he said.
Asked whether existing insurance would cover this type of risk, Engelhart didn’t know, noting that it may be covered in some cases, not in others, or there could be increases in insurance premiums.
Von Finckenstein pressed the distributors on the liability and indemnification issue. “Are you telling me collectively here that until that legal liability issue is solved, notwithstanding your investment, notwithstanding that you are technologically capable of resolving it, and assuming we resolve that issue of alert and danger to life, you still won’t be transmitting messages from Pelmorex?” he asked.
“It seems logical that he or she who has the authority in the public interest to issue an alert should bear the responsibility of the contents of that alert and the extent to which it is distributed,” responded Yves Mayrand, VP of corporate affairs Cogeco.
CAPAN and the distributors also shared the opinion that a third-party should have NAAD service oversight responsibilities. The distributors suggested that it should be Public Safety Canada while CAPAN pointed to the Senior Officials Responsible for Emergency Management (SOREM) as the appropriate body to which Pelmorex should be held accountable. SOREM was recently identified by public safety ministers at the federal, provincial and territorial levels as the group responsible for communications interoperability and alerting in Canada.
Doug Allport, volunteer executive director of CAPAN, explained that the governance board of the NAAD system is more like an advisory council with no accountability. The only accountability comes when the CRTC looks at this issue, he added.
“We do not have clear accountability except at these hearings. So we don’t want to go all the way to next hearing before we have another forum where we’re addressing accountability,” Allport said.
Engelhart argued the NAAD governing council won’t be able to solve issues around liability, the lack of Environment Canada’s involvement and other front-end problems because everyone keeps repeating the same problems over and over again. The solution is to put Public Safety in charge of NAAD.
“Until somebody steps up and runs this thing it’s going to be problematic,” he told von Finckenstein under questioning. “You’ve now got a weather alerting system with no weather alerts. You’ve got the NAAD. At the end of the year you’ll have the cable companies and the satellite companies, but you won’t have any weather alerts on the weather alerting system because Environment Canada has not signed up.”
