My weekly Law Bytes column (Toronto Star version, freely available hyperlinked column) reviews the Bangoura and Burke cases, the two recent Canadian Internet jurisdiction decisions involving the Washington Post and New York Post. The Ontario Court of Appeal declined to assert jurisdiction in the Bangoura case, expressing concern that "to hold otherwise would mean that a defendant could be sued almost anywhere in the world based upon where a plaintiff may decide to establish his or her residence long after the publication of the defamation." Meanwhile, a B.C. court asserted jurisdiction in the Burke case, a dispute over a hockey column, concluding that a lawsuit in the province was foreseeable.
I argue that at the heart of both cases is the issue of foreseeability. While the Bangoura appellate court rightly concluded that an Ontario suit was not foreseeable, the facts of the Burke case, which involved an article about an incident involving a B.C. resident at a hockey game being played in Vancouver, are far different. The B.C. judge was on safe ground concluding that the Post knew, or ought to have known, that the article would have a significant impact in B.C. and potentially lead to litigation.
Moreover, the two Canadian decisions are consistent with the legal approaches found in Australia and the United Kingdom, which have both adopted similar tests to those articulated in the Bangoura and Burke cases (the notable exception to this approach is the United States, whose courts have been reluctant to hold out-of-state publishers with no physical connection liable for online postings).
Last week's decisions clarify an important area of Canadian Internet law. While the potential for legal liability arising from online publishing has not been eliminated, the Canadian courts have provided all publishers with greater certainty about the risks associated with the online environment.
bangoura, burke, canada, defamation, geist, internet jurisdiction, law Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterTagsShareSunday September 25, 2005 |
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My weekly Law Bytes column (Toronto Star version, freely available hyperlinked version) focuses on this month's WSIS and WIPO meetings in Geneva. While the meetings are distinct, both reflect the developing world's increasing frustration with global rules that have an enormous impact on technological development everywhere yet were crafted primarily with the developed world in mind. With the importance of the Internet and new technologies readily apparent to all, those countries are clearly no longer content to sit on the sidelines as their interests go unrepresented.
Moreover, the two events have unfortunately reduced Canada's role to that of a bit player on the global Internet stage. Despite Prime Minister Paul Martin's repeated commitments to the developing world, Canada has quietly backed the United States on both the Internet governance and WIPO Development Agenda issues.
That position puts Ottawa at odds with the developing world and fails to recognize that the national interest lies with a globalized approach that benefits countries both the rich and poor. ITU and WIPO negotiators may be facing a fork in the policy road over the next two weeks, but Canada sadly appears to be unsure of which direction to turn.
a2k, development agenda, digital divide, geist, wipo, wsis Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterTagsShareSunday September 18, 2005 |
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My weekly Lawbytes column (freely available hyperlinked version, Toronto Star version) focuses on Bill C-37, which is designed to establish a do-not-call list. Following its introduction, Bill C-37 was referred to the Standing Committee on Industry, Natural Resources, Science and Technology for review. Months later, the amended bill is virtually unrecognizable, as intense lobbying has transformed the do-not-call list into the do-not-hesitate-to-call list.
Rather than leaving the specific exemptions to an open public consultation, the committee introduced several changes to the bill that dramatically reduces its effectiveness. These include exceptions for charities, political parties, polling companies, and businesses with existing business relationships. While it may come as little surprise to find politicians protecting their own ability to make unsolicited telemarketing calls, the inclusion of the existing business relationship exception is particularly damaging as it renders the do-not-call list practically useless.
The existing business relationship provision will allow businesses to contact former customers for up to a year and a half after their last communication or contract (notwithstanding the inclusion of their phone number on the do-not-call list). Moreover, even a simple inquiry will give businesses a six-month window to ignore the presence of the number on the do-not-call list.
Supporters of the do-not-hesitate-to-call list argue that the Canadian exceptions mirror those found in the U.S. Although it is true that the U.S. has created some similar exceptions, the Canadian exceptions go much further than their U.S counterparts. For instance, the exception period for a mere inquiry is twice as long in Canada as it is in the U.S.
Moreover, supporters of the amended proposal note that telemarketers will be required to maintain company-specific internal do-not-call lists so that Canadians can request no further phone calls on an individual company basis. They neglect to mention, however, that this merely restates current law, since federal privacy legislation clearly allows anyone to opt-out of further marketing communication. Experience has shown that company-specific do-not-call lists do not work, since few Canadians can opt-out of all their marketing calls, much less monitor appropriate compliance.
Not only is the new Bill C-37 a disappointing departure from the government' s prior commitment to an effective do-not-call list, the committee hearings were also particularly embarrassing. While the bill is ostensibly designed to protect consumers, the committee refused to hear from consumer groups. Instead, with notable exception of government officials and the Privacy Commissioner of Canada (whose advice was largely ignored), the committee limited its hearings to a steady stream of marketing and charitable groups.
I conclude by noting that since Bill C-37 has not yet become law, it is not too late to restore an effective do-not-call approach by reversing the committee' s proposed do-not-hesitate-to call list. The time has come for Canadians to speak out on the issue by delivering a few unsolicited calls of their own to Industry Minister David Emerson and their local Member of Parliament.
canada, do-not-call list, geist, law, michael geist, privacy, telemarketing Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterTagsShareSunday September 11, 2005 |
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My weekly Law Bytes column (Toronto Star version, freely available hyperlinked version) focuses on the explosive battle over satellite radio in Canada. I begin by recalling Canadian Heritage Minister Liza Frulla's position on the entry of RAI, the Italian language television network, into Canada last summer. Despite enormous pressure, the new Minister stood by the CRTC. In response to criticism from opposition parties, she told the House of Commons that "the CRTC is an independent tribunal and an arm's length body. Of course we cannot have any political use of that body."
Pressure continued to build throughout the fall as opposition parties maintained their focus on CRTC decisions. When the Minister was asked to intervene in cases involving two U.S. television networks, Fox News and SpikeTV, she again emphasized the independence of the CRTC, noting that "it will make its decision, and we are going to respect that decision."
Fast forward to last week: same CRTC, same Minister Frulla, but a much different message. Cabinet will reportedly discuss the matter on Thursday, yet Minister Frulla has already signaled that the government plans to intervene, telling one reporter that "our mind is pretty much made up."
Should Cabinet follow Minister Frulla's recommendation, the government will have substituted a lengthy, impartial process with one determined by lobbying power and political expediency. Even if it leaves the CRTC's decision untouched, the damage will still have been done, since Minister Frulla's abandonment of her principled support of the CRTC has vanished and the future relationship with the so-called "arm' s length body" has been called into question.
Moreover, the complete politicization of the satellite radio issue does not bode well for other key issues involving Canadian Heritage. Bill C-60, the copyright reform bill currently before the House of Commons, provides a laundry list of new rights and powers to special interests, but does little for individual Canadians. As pressure mounts from U.S. backed lobbies to eliminate the bill's few user-focused provisions, there are fears that that process may also shift away from a "Made in Canada" solution to a lobbyist-dominated outcome.
In the aftermath of the CRTC' s decision last June, I supported its willingness to identify new methods to promote Canadian content and concluded that Canadian artists and consumers would be the ultimate winners. It seems that I spoke too soon.
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My weekly Law Bytes column (freely available hyperlinked version, Toronto Star version) focuses on the coming battle over copyright and education in Canada in light of the recent premiers' commitment to higher education and the likely summit with the Prime Minister on the issue this fall. I argue that the federal government could presumably win provincial support by simply cutting a bigger education cheque, however, this would be shortsighted. Increased funding is necessary to be sure, but it is by no means sufficient.
From a provincial perspective, the premiers would do well to focus on three issues: distance education, access to knowledge, and an innovative research environment. Distance education is particularly important. Canadian universities boast one of the world's fastest computer networks, yet government policy has severely hindered those capabilities. For example, Bill C-60, the copyright reform bill currently before the House of Commons, represents a step backward when it comes to the use of the Internet in Canadian education.
The provinces should also demand that the federal government do more to facilitate access to knowledge. One possibility in that regard is the creation of a national digital library. Digitizing millions of Canadian books would provide students with greater access to Canadians works, while also serving as an important export of Canadian culture to the rest of the world. Given the importance of cutting edge research to Canada' s innovation agenda, Ottawa should also commit to a pro-innovation research environment.
While there is much that the federal government can do for Canadian education, it should also use the education summit to demand more from both the provinces and Canadian universities. Increased dollars for research are always welcome, but that money should be distributed with new strings attached that link the results to open access policies. The federal government should also encourage the type of curriculum reform that increases accessibility to education.
Most importantly, Ottawa should prod Canada's universities to adopt a more aggressive approach in the use of copyrighted works. Today Canadian universities spend millions in copyright licenses that are arguably unnecessary. This expenditure effectively represents a subsidy to Canadian publishers from taxpayers as well as from students who are facing escalating tuition fees at a time that they can scarcely cover their monthly rent.
A survey of the advice emanating from Canadian universities' copyright offices illustrates that universities have been reticent to exercise rights that the Supreme Court of Canada made clear they have in last year's Law Society of Upper Canada v. CCH decision. Of the copyright web pages of 65 universities, only one, the Universite du Quebec, references the landmark Supreme Court decision. Meanwhile, only two universities discuss open access policies and just 15 universities, less than a quarter of them, refer to the special education exemption provisions found in the Copyright Act. In fact, barely more than half (39 of 65 universities) highlight fair dealing, the staple provision that provides students and educators with broad rights to use copyrighted works.
Rather than focusing on their rights, Canadian universities rely heavily on guidelines from Access Copyright and Copibec, the copyright collectives that are the direct beneficiaries of the questionable university copyright licenses. Eighty-two percent (53 of 65 Canadian universities) rely on the collectives as a source of copyright guidelines.
The federal government can rightly argue that Canadian universities must do better. Canadian higher education must practice what it preaches by exercising its user rights and by educating students on the need for copyright policies that balance the interests of creators and users.
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My weekly Law Bytes column (freely available hyperlinked version, Toronto Star version) examines the lawful access plan in light of Justice Minister Irwin Cotler's announcement late last week that the government plans to move forward on the initiative this fall.
Although the specifics of the actual bill remain unknown, the spring 2005 consultations provided a good sense of what Canadians can expect. If enacted, lawful access would compel Internet service providers to install new interception capabilities as they upgrade their networks. The country's major ISPs, who provide service to the majority of Canadians, will eventually be capable of intercepting data, isolating specific subscribers, and removing any encryption or other changes that they make to data transmissions. The proposal will likely contain an exemption for smaller ISPs, but all will be required to report on their readiness to conduct interceptions six months after the law takes effect. Failure to comply with the new standards would carry stiff penalties with fines of up to $500,000 and potential imprisonment for five years.
Lawful access would also provide law enforcement authorities with a wide range of new powers. For example, authorities could apply for new "production orders" with which they could compel disclosure of tracking data such as cell phone usage as well as transmission data, including telecommunications and Internet usage information. Law enforcement authorities would also have access to a new "preservation order" that could be used to compel ISPs to preserve Internet usage information for up to three months, forcing ISPs to store far more data than is currently the case. Among the most troubling aspects of the lawful access proposals are a series of new powers that are not accompanied by any judicial oversight. Law enforcement authorities, including the police, CSIS agents, and even Competition Bureau authorities, will have the right to obtain ISP subscriber information simply upon request without a warrant. In fact, the proposals even envision ISPs responding to such requests in certain situations within 30 minutes based solely on a phone call.
The column argues that before supporting this initiative, Canadians ought to ask some tough questions. I ask five:
1. Are all these new powers necessary?
2. Do the new powers contain sufficient judicial oversight?
3. Are the lawful access provisions constitutional?
4. Is lawful access strictly designed to address the threat of terrorism?
5. Will lawful access actually prove successful in battling Canadian terror?
Read the column for my answers which, not surprisingly, are critical of the lawful access initiative.geist, isp, lawful access, privacy Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterTagsShareFriday August 26, 2005 |
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My weekly Law Bytes column (freely available hyperlinked version, Toronto Star version) summarizes the key points in my submission to Canada's Telecommunications Policy Review. The submission should be posted online within the next day or two [update: the submission is now online]. I argue that three principles should govern the country's Internet telecommunications policy: universal broadband access, legislated network neutrality, and statutory Internet privacy protection.
On the issue of broadband access, I lament a broadband marketplace that features a telco-cable duopoly for those with broadband access and no broadband whatsoever for communities without cable competition. In my view, the solution to this significant problem is clear -- where cable and telephone providers have proven unable or unwilling to offer commercial broadband services, federal, provincial and local governments should fill the void to ensure that all Canadians enjoy access to e-commerce, distance education opportunities, tele-health, and e-government services. In fact, even in communities with both cable and telco broadband choices, local municipalities should consider offering a third, publicly supported broadband alternative using a utility model.
With regard to network neutrality, I argue that in an era where limited broadband competition and growing convergence leaves providers with economic incentives to favour their own (or affiliated content) over competing services or offerings, content neutrality in the provision of network services is an absolutely essential principle that should be firmly established under Canadian law backed by regulatory oversight and significant penalties for compliance failures. The power of the Internet to foster public participation, provide greater cultural choices, and exposure to educational opportunities rests on a principle of unrestricted access to such content. The Telus incident demonstrated that Canadian law does not provide sufficient support for such a principle.
Moreover, telephone and cable broadband providers should be legally prohibited from configuring their networks to favour or preference their own VoIP offerings over the competition. The treatment of "bits" should be equal and devoid of any preferencing such that emerging competitors can realistically compete with established providers.
With courts recognizing the importance of Internet-based privacy, it is critical that the Canadian legal framework reflect the importance of protecting individual privacy. This can be best achieved by statutorily permitting the disclosure of subscriber personal information only under court order where the privacy interests of the individual can be fully considered and protected. Canadians should also be informed when their personal information has been compromised due to a security breach at an ISP. The Act should therefore include a positive obligation on ISPs to report breaches in the security of personal information in their possession.
I conclude the column by noting that Canada has long prided itself in being a telecommunications leader. That leadership position is being challenged, however, as other countries, recognizing the importance of the Internet, introduce supportive new policies. The Canadian telecommunications policy review may have gone unnoticed, but its recommendations will have a major impact on Canadians access to knowledge, education, and communication for years to come.
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Following on CRIA's pledge not to sue consumers who copy their CDs onto iPods or computer hard drives, my regular Law Bytes column (freely available hyperlinked version, Toronto Star version) reflects on the recent decision by the Canadian Supreme Court to let stand a ruling that upheld the legality of the Canadian private copying system but rejected an attempt to apply it to digital audio recorders such as the Apple iPod. The column argues that while in theory the private copying system provides consumers with the right to copy and artists with appropriate compensation for that copying, it is time to acknowledge that the system has failed and must be dramatically reformed or scrapped entirely.
In addition to the Supreme Court decision, I note that the Canadian government plans to further constrict the rights enjoyed by consumers under the private copying levy. Bill C-60, Canada's copyright reform bill, includes a provision that allows the music industry to prohibit private copying on CDs that contain anti-copying technologies such as those used on the latest CD from the popular group Coldplay. This provision seemingly contradicts CRIA's pledge in yesterday's Star that it will take no legal action against consumers who legally acquire music and copy it to their hard drives or portable devices.
Should this provision become law, Canadians would pay tens of millions of dollars in levy fees, yet they would be precluded from copying their CDs onto their iPods or, in the case of "copy-controlled" CDs, making any private copies at all.
If that were not bad enough, the millions of dollars collected through the levy does not appear to be making its way to Canadian artists. Although the levy has generated more than $120 million over the past five years, Canadian Private Copying Collective (the administrator of the levy) has only distributed about 25 percent of those funds.
Industry Minister David Emerson and Canadian Heritage Minister Liza Frulla have indicated that the government plans later this year to consult on the future of private copying. With few remaining supporters, even one-time private copying champion CRIA welcomed the Supreme Court decision, change is urgently required.
One approach would be to expand the levy so that it better reflects current copying practices. Using the model of several European countries, the levy would grow in size, but so too would the rights of consumers to copy both audio and video for personal purposes. In fact, such an approach would provide the music industry with multiple revenue streams since it would collect the levy for peer-to-peer music file sharing, while also enjoying the benefits of a thriving commercial download market.
However, given the opposition to the levy system, the better alternative might be to simply drop it completely. In its place, Canada could adopt a "fair use" provision that would allow consumers to copy their own CD collection onto another device along with the elimination of statutory damages provisions for such copying cases. The fair use approach would match the U.S. model, where the recording industry has acknowledged that consumers have the right to copy their own CDs without reference to a private copying levy (and which CRIA seemed to acknowledge in its pledge yesterday).
There is no question that the introduction of the private copying system was intended to provide artists with compensation and consumers with legal certainty. It has done neither. The time has come to replace it with a fair use system that would be more equitable to all Canadians.
Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterTagsShareMonday August 08, 2005 |
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The Telus website blockage story may have come to a close last week with the removal of the block, but its ramifications are likely to felt for a long time to come. The NY Times covers the story today and my weekly column (freely available hyperlinked version, Toronto Star version) also assesses the longer term implications.
I argue that Telus violated the basic ISP rule that providers transport bits of data without discrimination, preference, or regard for content. The company argued that its subscriber contract granted it the right to block content, in this case the website supportive of its main union. Telus claimed that the site contained content that placed its employees at risk. While it may have been able to rely on contract to block access for its roughly one million retail subscribers, the blockage occurred at the Internet backbone level, thereby blocking access for other ISPs (and their customers) that use Telus as their provider. For example, Prince Rupert, a small city on the northwest coast of British Columbia, has established a community ISP to provide its citizens with municipally supported Internet access. Since their connectivity is provided by Telus, last week the entire community found itself unable to access the website in question.
Further, while the legal issues associated with the incident are somewhat murky (see related posting), the website blockage was stunningly bad policy that may ultimately come back to haunt the entire Canadian ISP industry. Earlier this year the federal government launched its Telecommunications Policy Review, a comprehensive review of all aspects of the Canadian telecommunications regulatory framework, including the provision and availability of Internet services.
The Telus blockage, combined with ever growing concerns about ISPs that engage in packet preferencing or discrimination against competitive Internet telephony services, as well as doubts about the effectiveness of ISP action against spam, and fears about ISP protection of customer private data in light of potential new law enforcement surveillance requirements, may lead to increasing calls for a new national ISP accountability framework.
I conclude by noting that Canadian ISPs have been supported for many years by a self-regulatory environment premised on network neutrality and non-discrimination of the traffic on their systems. In light of last week's events, they may soon find the federal government stepping in to back this principle with the force of law.
Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterTagsShareMonday August 01, 2005 |
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My weekly Law Bytes column (freely available hyperlinked version, Toronto Star version) examines last week's Privacy Commissioner of Canada finding on secondary marketing. The Commissioner ruled that the inclusion of marketing materials in banking statements constitutes "secondary marketing" and that consumers should be entitled to opt-out of receiving it. I argue that the decision is part of a series of recent findings that send a clear message to Canadian business: a commitment to privacy will occasionally mean that longstanding practices must be changed.
Criticism of the finding has centered on two issues. Some fear that consumers will ultimately bear the cost of the decision with higher banking fees, while other experts maintain that scarce privacy resources should be directed toward bigger issues such as identity theft or workplace surveillance.
Canadians can certainly identify with ever-increasing bank fees, however, the cost of privacy compliance is not unique to this case. Privacy compliance invariably involves a cost, yet support for private sector privacy legislation demonstrates that it is a price Canadians are prepared to pay. Moreover, given the competitive banking environment and the fact that several banks already permit consumer opt-outs, it seems unlikely that consumers will shoulder a significant new cost.
Critics that also argue that Canada faces bigger privacy issues than secondary marketing can certainly make a case that identity theft and workplace surveillance are important issues that should not be ignored.
It does not follow, however, that the Commissioner should avoid also highlighting issues such as secondary marketing. The Commissioner is legally obligated to address all complaints filed with her office and therefore must take on cases both big and small.
Even if an investigation would not have been required, the sum of this case is much bigger than its individual parts. The effect for each individual banking customer is limited, yet there is a significant aggregate impact when spread over millions of Canadians. If the Commissioner were to avoid small privacy issues, invasive practices would be left unchecked with everyone bearing part of the burden.
Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterTagsShareMonday July 25, 2005 |
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