Wiertz Sebastien - Privacy by Sebastien Wiertz (CC BY 2.0) https://flic.kr/p/ahk6nh
One week after the B.C. Court of Appeal ruled that it could order Google to remove websites from its global index, the same court (but different judges) ruled that a privacy class action lawsuit against Facebook could not proceed in the province because the Facebook terms and conditions provide that all disputes must be resolved in a court in Santa Clara, California. The decision should provide a wake-up call to users and policy makers because an absolute approach to terms and conditions not only means that Canadian courts may be unable resolve consumer disputes involving companies like Facebook, but that Canadian law will not apply either.
The current Facebook terms and conditions state:
You will resolve any claim, cause of action or dispute (claim) you have with us arising out of or relating to this Statement or Facebook exclusively in the U.S. District Court for the Northern District of California or a state court located in San Mateo County, and you agree to submit to the personal jurisdiction of such courts for the purpose of litigating all such claims. The laws of the State of California will govern this Statement, as well as any claim that might arise between you and us, without regard to conflict of law provisions.
While this appears to be slightly different from the terms that governed the dispute before the B.C. courts (it referenced courts in Santa Clara county), the key takeaway from the decision goes well beyond a proposed class action lawsuit over a Facebook “sponsored stories” program that no longer exists. The trial judge rightly noted that the heart of the case is whether online terms and conditions override domestic legal protections (in this case, the B.C. Privacy Act).
Bill C-51, the anti-terrorism bill, became law yesterday as it received royal assent. As polls continue to suggest that the Liberal support for the bill is shifting potential voters to the NDP, Liberal leader Justin Trudeau has conducted several interviews defending his position as the “right move for Canadians.” Trudeau’s arguments, which have been echoed by other Liberal MPs such as Marc Garneau, boils down to three key claims: he doesn’t want to play politics with security, there are elements in Bill C-51 he likes including greater information sharing, and he will fix the problems with the bill if elected.
For those Canadians looking for an alternative to the Conservative position on Bill C-51, Trudeau’s defence falls flat.
A budget implementation bill is an unlikely – and many would say inappropriate – place to make major changes to Canadian privacy law. Yet Bill C-59, the government’s 158-page bill that is set to sweep through the House of Commons, does just that.
The omnibus budget bill touches on a wide range of issues, including copyright term extension and retroactive reforms to access to information laws. But there are also privacy amendments that have received little attention. In fact, the Privacy Commissioner of Canada was not even granted the opportunity to appear before the committee that “studied” the bill, meaning that privacy was not discussed nor analyzed (the committee devoted only two sessions to external witnesses for study, meaning most issues were glossed over).
My weekly technology law column (Toronto Star version, homepage version) notes that the bill raises at least three privacy-related concerns. First, the retroactive reforms to access to information, which are designed to backdate the application of privacy and access to information laws to data from the long-gun registry, has implications for the privacy rights of Canadians whose data is still contained in the registry. By backdating the law, the government is effectively removing the privacy protections associated with that information.
Bell’s recent characterization of Canadians using virtual private networks to access U.S. Netflix as thieves has attracted considerable attention. Yesterday, I posted on why accessing U.S. Netflix is not theft, noting that a minority of Canadian Netflix subscribers use VPNs and arguing that the frustration seems rooted in business concerns rather than legal ones. The post added that Netflix and CraveTV (Bell’s online video service) have little overlap in content. Working with Kavi Sivasothy, one of my research students, we took a closer look at the libraries of Netflix U.S., Netflix Canada, and CraveTV. We relied on AllFlicks.net for the Netflix data and CraveTV’s own A to Z page for its data.
Based on that information, how many titles does CraveTV offer that overlap with Netflix U.S. and are not available on Netflix Canada? Not many. In fact, the data suggests that there are some CraveTV titles that are not available on Netflix U.S., but are available on Netflix Canada. Overall, more than 90 percent of CraveTV’s titles are not available on either Netflix U.S. or Netflix Canada. [UPDATE: Thanks to a reader for pointing out a few omissions from the chart. The error was due to different spelling in the Netflix and CraveTV lists. The numbers have been updated].
Bell Media president Mary Ann Turcke sparked an uproar last week when she told a telecom conference that Canadians who use virtual private networks (VPNs) to access the U.S. version of Netflix are stealing. Turcke is not the first Canadian broadcast executive to raise the issue – her predecessor Kevin Crull and Rogers executive David Purdy expressed similar frustration with VPN use earlier this year – but her characterization of paying customers as thieves was bound to garner attention.
My weekly technology law column (Toronto Star version, homepage version) argues that Turcke’s comments provide evidence of the mounting frustration among Canadian broadcasters over Netflix’s remarkable popularity in Canada. Netflix launched in Canada less than five years ago, yet reports indicate that it now counts 40 per cent of English-speaking Canadians as subscribers. By contrast, Bell started its Mobile TV service within weeks of the Netflix launch, but today has less than half the number of subscribers.