Policy makers have long struggled to strike a fair balance in crafting rules to address allegations of copyright infringement on the Internet. Copyright owners want to stop infringement and the right to pursue damages, Internet subscribers want their privacy and freedom of expression rights preserved in the face of unproven allegations, and Internet providers want to maintain their neutrality by resolving the disputes expeditiously and inexpensively.
My Globe and Mail op-ed notes that the Canadian system for online infringement was formally established in 2012 and came into effect in 2015. The so-called “notice-and-notice” approach grants rights holders the ability to send notifications of alleged infringement to Internet providers, who are required by law to forward the notices to the relevant subscriber and to preserve the data in the event of future legal action. The system does not prevent rights holders from pursuing additional legal remedies, but Internet providers cannot reveal the identity of their subscribers without a court order.
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Last week, the Supreme Court of Canada heard arguments in a case that strikes at the heart of law in the online world. Google v. Equustek Solutions stems from claims by Equustek, a Canadian company, that another company used its trade secrets to create a competing product and engaged in misleading tactics to trick users into purchasing it.
After struggling to get the offending company’s website taken offline, Equustek obtained a British Columbia court order requiring Google to remove the site from its search index. Google voluntarily removed search results for the site from Google.ca search results, but was unwilling to block the sites from its worldwide index. The B.C. court affirmed that the order applied on an international basis, however, issuing what amounted to global takedown order.
The Supreme Court hearing, which attracted intervenors such as the Wikimedia Foundation, Electronic Frontier Foundation, as well as the music and movie industry associations, focused on issues such as the effectiveness of a Google-targeted order, where the responsibility for identifying conflicting laws should lie, and the fairness of bringing an innocent third-party such as Google into the legal fray.
My Globe and Mail opinion piece notes that largely missing from the discussion was an attempt to grapple with perhaps the biggest question raised by the case: In a seemingly borderless Internet, how do courts foster respect for legal rules and avoid vesting enormous power in the hands of Internet intermediaries who may ultimately find themselves picking and choosing among competing laws.
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The Supreme Court of Canada issued its decision in R. v. Fearon today, a case involving the legality of a warrantless cellphone search by police during an arrest. Given the court’s strong endorsement of privacy in recent cases such as Spencer, Vu, and Telus, this seemed like a slam dunk. Moreover, the U.S. Supreme Court’s June 2014 decision in Riley, which addressed similar issues and ruled that a warrant is needed to search a phone, further suggested that the court would continue its streak of pro-privacy decisions.
To the surprise of many, a divided court upheld the ability of police to search cellphones without a warrant incident to an arrest. The majority established some conditions, but ultimately ruled that it could navigate the privacy balance by establishing some safeguards with the practice. A strongly worded dissent disagreed, noting the privacy implications of access to cellphones and the need for judicial pre-authorization as the best method of addressing the privacy implications.
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Rogers has updated its approach to responding to law enforcement requests for subscriber information to reflect last month’s Supreme Court of Canada Spencer decision. The company will now require a warrant for access to basic subscriber information (with the exception of life threatening emergencies), a policy that effectively kills the government’s Bill C-13 voluntary disclosure provisions. The government wants to provide full immunity for voluntary disclosure of personal information, but Canadian Internet providers and telecom companies are unlikely to provide such information without a court order given the recent decision. The Rogers update:
After hearing your concerns and reviewing the Supreme Court ruling from last month, we’ve decided that from now on we will require a court order/warrant to provide basic customer information to law enforcement agencies, except in life threatening emergencies. We believe this move is better for our customers and that law enforcement agencies will still be able to protect the public.
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