MICHAEL GEIST
Thursday, January 4, 2001
With issues such as cybercrime, on-line copyright laws and privacy protection moving from the legal page to the front page, cyberlaw emerged last year as one of the hottest fields in Canadian law.
That trend will continue this year, with these issues expected to lead the way:
The many faces of privacy: Canada's new privacy law took effect Monday. The full effect of the law will be felt toward the end of the year, when Canada's Privacy Commissioner begins to test the strength of the law by responding to complaints and conducting privacy audits.
However, privacy law concerns will extend beyond the new federal law. Expect several provinces to consider enacting provincial privacy laws that provide protection for medical data as well as other sensitive information.
In the United States, watch for children's privacy to grow in prominence. Financial privacy will also grab attention as new regulations take effect at mid-year.
On the horizon, look for wireless privacy issues to take centre stage. Wireless presents a particularly thorny privacy concern because mobile phones and wireless e-mail devices reveal information about where we are, as well as who we are.
On-line consumer confidence: The search for anexplanation as to why consumers are reluctant to purchase on-line will lead to questions about the current e-commerce legal environment. Although Canada is enacting e-commerce legislation from coast-to-coast, look for consumer protection measures, trustmark programs, and alternative dispute resolution mechanisms to emerge as lawmakers seek to provide the public with assurances that buying on-line is as safe as buying off-line.
Jurisdiction battles: The recent Yahoo France case, in which a French judge ordered the U.S. portal to block French access to Nazi materials, attracted international attention because it portends increasing extraterritorial application of law. Although the case has sparked an outcry among many who are concerned about the prospect of one country dictating Internet laws to the rest of the world, this is already happening, as evidenced by the children's privacy legislation in the U.S. and the European Union's data privacy directive. The Yahoo case has galvanized interest in the issue, however, so expect to see considerable debate over whose laws should apply in the on-line environment.
High-speed Internet access: With the growing desire for high-speed Internet access, criticism of the technical difficulties and lack of competition among current providers is becoming increasingly vocal. The Canadian Radio-television and Telecommunications Commission has already begun to raise the issue, recognizing the fundamental importance of Internet access for government services, education, and health care.
Intellectual property in the courts: The dominant cyberlaw story of 2000 will likely remain a key story in the year ahead as well. The much-awaited Napster decision, which should come early this year, will provide insight into how U.S. courts intend to apply copyright law in the digital era.
Regardless of the outcome, the Napster decision will not put an end to the court cases. We can expect continuing legal disputes over intellectual property rights in the on-line environment on both sides of the border.
In Canada, the Tariff 22 decision, which provided guidance on the application of Canadian copyright law to on-line music, is currently the subject of an appeal, with a ruling possible this year. The Canada Copyright Board, meanwhile, may forge ahead on an Internet Webcasting tariff that will provide increased legitimacy to the activities of such sites as iCraveTV and JumpTV.
Michael Geist is a law professor at the University of Ottawa Law School and director of e-commerce law at the law firm Goodmans LLP.
mgeist@uottawa.ca
