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    Letters Of The Law: The Year In Tech Law And Policy

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    Wednesday December 21, 2011
    The past 12 months in law and technology were exceptionally active, with legislative battles over privacy and copyright, near-continuous controversy at the CRTC, and an active Supreme Court of Canada docket. My weekly technology law column (Toronto Star version, homepage version) takes a look back at 2011 from A to Z:

    A is for the Amazon one-click patent, which is at the centre of a long running fight over the validity of business method patents in Canada.

    B is for Baglow v. Smith, an Ontario Superior Court decision which ruled that comments on a blog should not necessarily give rise to a claim in defamation, when the person alleging defamation has a right of reply in the same blog.

    C is for Century 21, which won a major case over Rogers Communications and its real estate search site Zoocasa. The case included important findings on online contracts, trespass, and copyright.


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    The Letters of the Law: The Year in Tech Law from A to Z

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    Wednesday December 21, 2011
    Appeared in the Toronto Star on December 18, 2011 as The Year in Tech Law, From A to Z

    The past 12 months in law and technology were exceptionally active, with legislative battles over privacy and copyright, near-continuous controversy at the CRTC, and an active Supreme Court of Canada docket. A look back at 2011 from A to Z:

    A is for the Amazon one-click patent, which is at the centre of a long running fight over the validity of business method patents in Canada.

    B is for Baglow v. Smith, an Ontario Superior Court decision which ruled that comments on a blog should not necessarily give rise to a claim in defamation, when the person alleging defamation has a right of reply in the same blog.

    C is for Century 21, which won a major case over Rogers Communications and its real estate search site Zoocasa. The case included important findings on online contracts, trespass, and copyright.

    D is for the digital television transition, which finally occurred on August 31st.

    E is for eHarmony, the online dating site that was the subject of a privacy commissioner investigation leading to changes to its customer data deletion practices.

    F is for false news, which erupted as a controversy after the CRTC quietly proposed a significant change to the rules on false or misleading news broadcasts on radio or television.

    G is for Adam Guerbuez, the Montreal-based spammer who mocked the government as it delayed finalizing anti-spam regulations that are needed to bring the law into effect.

    H is for Hurt Locker lawsuits, which made their way to Canada with dozens of file sharing legal actions launched against individuals in Quebec.

    I is for the iPod tax, which surprisingly emerged as an election issue during the spring campaign.

    J is for Jon Newton, whose case on liability for hyperlinking led to a landmark Supreme Court of Canada decision against creating such liability.

    K is for Jason Koblovsky, the founder of the Canadian Gamers Organization, which filed a complaint against Rogers Communications over interference with online games arising from its throttling practices.  

    L is for Leon’s Furniture, which successfully argued that a vehicle licence number is not "personal information" within the context of Canadian privacy law because it is not about an individual.

    M is for misleading advertising, which the Competition Bureau aggressively pursued in a claim against Bell. Bell agreed to pay $10 million, the maximum permitted under the Competition Act, and cover $100,000 in investigation expenses.

    N is for Netflix, which fuelled a contentious regulatory battle at the CRTC on the implications of over-the-top video services.

    O is for Open Media, the Vancouver-based advocacy group that spearheaded the fight against Internet provider usage based billing practices.

    P is for Industry Minister Christian Paradis’s Penske File, the long-lost digital economy strategy that languished in 2011.

    Q is for Telus Communications v. Queen, a case headed to the Supreme Court over the issue of whether police can use a general warrant to intercept SMS text messages.

    R is for the Royal Bank of Canada, which was ordered to pay $4,500 for violating Canadian privacy laws in the disclosure of account information to a spouse embroiled in a bitter divorce proceeding.

    S is for security breach disclosure legislation, which was re-introduced in Bill C-12.

    T is for the twittering Treasury Board, which released Guidelines for External Use of Web 2.0, offering specific guidance on the use of social media and other Web 2.0 tools by government departments.

    U is for Universal Music Canada, one of several major record labels to settle the largest copyright class action lawsuit in Canadian history. The labels agreed to pay more than $50 million to settle claims that they used sound recordings without paying the applicable royalties.

    V is for vertical integration rules, which restrict the ability of newly converged broadcast and telecom companies to establish exclusive arrangements for popular content.

    W is for the warrantless disclosure of customer information, one of the most troubling aspects of forthcoming lawful access legislation.

    X is for Xplornet Communications, the satellite Internet provider that was the source of the longest running net neutrality complaint at the CRTC.

    Y is for York University, one of dozens of Canadian universities that opted-out of the Access Copyright licence for copying materials on campus.

    Z is for Zarek Taylor Grossman Hanrahan LLP, a law firm that was found to have violated Canadian privacy law by posting on its website a previous report of findings from the Privacy Commissioner of Canada along with a cover letter that identified the complainant.
     

    Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can reached at mgeist@uottawa.ca or online at www.michaelgeist.ca.


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    Supreme Court Will Lead Tech Law in 2011

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    Tuesday January 11, 2011
    Predictions about the upcoming year in technology law and policy in Canada are particularly challenging given the prospect of a possible election.  My weekly technology law column (Toronto Star version, homepage version) notes that while there is no shortage of potential new laws - bills on privacy, copyright, and lawful access are all before the House of Commons - an election call before the fall would likely mean that those bills would die on the order paper.

    With political uncertainty clouding even the best crystal ball, the Supreme Court of Canada is set to emerge this year as the place where much of the action will take place.  Canada’s highest court has lined up a tech-heavy docket that will have a major impact Canadian law.


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    Supreme Court Will Lead Tech Law in 2011

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    Tuesday January 11, 2011
    Appeared in the Toronto Star on January 9, 2011 as Supreme Court Will Lead Tech Law in 2011

    Predictions about the upcoming year in technology law and policy in Canada are particularly challenging given the prospect of a possible election.  While there is no shortage of potential new laws - bills on privacy, copyright, and lawful access are all before the House of Commons - an election call before the fall would likely mean that those bills would die on the order paper.

    With political uncertainty clouding even the best crystal ball, the Supreme Court of Canada is set to emerge this year as the place where much of the action will take place.  Canada’s highest court has lined up a tech-heavy docket that will have a major impact Canadian law.

    First up is a series of decisions arising from hearings last fall.  These include Masterpiece Inc. v. Alavida Lifestyles Inc., a trademark law case that raises questions about the standard for likelihood of confusion between two competing trademarks. There are also several cases involving access to government information under the Access to Information Act. With the mounting interest in open government and access to public documents, the cases will help identify how far the current legislation extends.

    The most anticipated Internet law decision is Crookes v. Newton, a case that will determine the potential liability for hyperlinking.  Given the widespread use of links in emails, webpages, Facebook updates, and Twitter postings, the prospect of being held legally responsible for the content on the page being linked to could have a chilling effect on Internet speech.  

    The court has already agreed to address at least two additional cases this year with major implications for the Internet.  In March, it will be asked to consider the limits of Internet jurisdiction in an appeal of Black v. Breeden, Conrad Black’s lawsuit over postings such as press releases and reports on the Hollinger International, Inc. website that he claims were defamatory.

    When Black sued the company’s directors, advisers, and one company employee for defamation in Ontario, the defendants in the case brought a motion to dismiss on jurisdictional grounds, arguing that the province was not the appropriate venue for the case since both Hollinger and Black are located in the U.S.  In a unanimous decision issued last summer, the Ontario Court of Appeal sided with Black, noting that the press releases posted on the Internet specifically provided contact information for Canadian media and that the company "clearly anticipated that the statements would be read by a Canadian audience and invited Canadian media to respond."

    Later this year, the court will hear at least one case that examines the scope of the Copyright Act’s fair dealing provision. At issue is whether "research" within fair dealing can be extended to song previews that are made available on sites like iTunes where a consumer can freely listen to roughly 30 seconds of a song.  

    The Copyright Board of Canada ruled in 2007 that a broad and liberal interpretation of fair dealing meant that it could be included since the preview was effectively consumer research on whether to purchase the song.  The Federal Court of Appeal affirmed the Copyright Board's interpretation last May, opening the door to many other consumer research possibilities under the current fair dealing provision.

    With a second fair dealing case involving copying in schools also a distinct possibility for a high court hearing, the Supreme Court is set to play a lead role in technology law in 2011 regardless of what transpires on the political front.

    Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can reached at mgeist@uottawa.ca or online at www.michaelgeist.ca.


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