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Banner year for digital decisions

2004's tech rulings shaping lives, business

This past year saw several landmark developments in Canadian technology law. The Supreme Court of Canada released a trio of important rulings, federal policy makers grappled with difficult issues such as copyright and spam, and the Canadian Radio-television and Telecommunications Commission (CRTC) held hearings to consider the optimal regulatory approach to emerging technologies such as satellite radio and Internet telephony. Collectively developments from A to Z are certain to have a profound impact on Canadian law and policy for many years to come.


A is for, a U.S. company that collects and uses Canadians' personal information. The company was the subject of a complaint to Jennifer Stoddart, the Privacy Commissioner of Canada, who set some troubling limits on the scope of Canada's privacy law by ruling that she was unable to investigate the matter since does not have a physical presence in Canada.


B is for Bangoura v. Washington Post, a controversial Internet jurisdiction decision released by the Ontario courts in February. The court ruled that Cheickh Bangoura, a former African U.N. official, could proceed with a defamation suit against the Washington Post concerning an article first published in 1997. The case, which is currently under appeal, raised fears of a chill on free speech among media companies worldwide.


C is for the Canadian Football League's Ottawa Renegades, who were the target of Canada's first spam complaint launched with the Privacy Commissioner of Canada (in the interests of full disclosure, I was the complainant). The Commissioner ruled that the football team's practice of sending unsolicited commercial e-mail to e-mail addresses harvested from a publicly-available Web site violated Canada's privacy legislation.


D is for Diners Club International, which emerged victorious in one of the strangest domain name dispute resolution decisions in recent memory. A Canadian domain name dispute resolution panel ordered two domain names — and — transferred to the credit card issuer despite the absence of evidence that the domains were registered in bad faith, a condition mandated by the Canadian dispute resolution policy.



E is for Mathew Englander, who successfully challenged Telus' privacy practices in connection with its unlisted phone number policy. Although unsuccessful with both the Privacy Commissioner of Canada and the Federal Court of Canada's trial division, Englander proved his skeptics wrong when the Federal Court of Appeal ruled in November that certain aspects of Telus' consent process failed to comply with Canada's privacy law.


F is for the Broadcast Flag, a U.S. requirement that all televisions, videotape recorders, and computers with digital-TV tuner cards distributed after July 2005 be wired to control copying of over-the-air digital television signals. In August, a Canadian official indicated that Canada was considering following the U.S. approach, despite significant copyright and technological innovation concerns.


G is for the Globe and Mail, the newspaper embroiled in a longstanding copyright dispute with Heather Robertson, a freelance author. The Ontario Court of Appeal ruled in Robertson's favour in October, concluding that the use of Robertson's work within the Globe's databases fell outside of its copyright.


H is for the Canadian Heritage Parliamentary Committee, which issued a series of copyright reform recommendations in May. The recommendations generated considerable controversy as the Canadian education community noted that if Industry Minister David Emerson and Canadian Heritage Minister Liza Frulla adopted the proposals, millions of dollars would be siphoned out of Canadian schools. Consumer groups, scientists, and privacy advocates also expressed fears that implementation of the reforms would harm personal privacy, research and innovation, as well as consumer rights.


I is for iTunes, the online music service that finally launched in Canada following months of anticipation. While the Canadian Recording Industry Association (CRIA) once claimed that the commercial services would not enter the Canadian market without copyright reforms, Canadian consumers can now choose from several commercial services, including Puretracks,, and iTunes, as well as download for private copying purposes from peer-to-peer services.


J is for Judy Marsales, an Ontario MPP who introduced the province's first anti-spam bill. Marsales' proposal was one of several anti-spam measures proposed in Canadian legislatures in 2004.


K is for Konrad von Finckenstein, the federal court judge who stunned the Canadian music industry in March by rejecting their demand that Internet service providers identify 29 alleged file sharers. Von Finckenstein concluded that the industry had failed to tender sufficient evidence tying the alleged infringements to the 29 individuals. He further raised doubts about whether the industry had demonstrated copyright infringement under Canadian law.


L is for the Law Society of Upper Canada, which won the most important copyright case of the year. In March, the Supreme Court of Canada ruled that the LSUC had not infringed the copyright of several legal publishers by providing photocopy facilities and services at its Great Library in Toronto. In doing so, the court provided a strong affirmation of the need for balance in copyright law and for respect of user rights to maintain that balance.


M is for Monsanto Canada, which emerged victorious in its patent dispute with Saskatchewan farmer Percy Schmeiser. The Supreme Court of Canada ruled in May that the company held a valid patent for its genetically modified seed, though it limited the potential recoverable damages in the dispute.


N is for the No-call list, which the federal government introduced in December. The proposed legislation mirrors regulations found in the U.S. that allow consumers to register their phone number on a do-not-call list. The U.S. list now contains more than 66 million phone numbers.


O is for Outsourcing and the controversy surrounding the privacy implications of the USA Patriot Act. Faced with growing public concern about the protection of their personal information, the British Columbia government introduced legislative amendments in the fall designed to block foreign access to certain personal health information of its residents. Notwithstanding the outsourcing community's objections that the legislation would be bad for business, the issue quickly attracted attention from privacy officials across the country.


P is for Internet Pharmacies and the increasing pressure placed on the Canadian industry. While the pharmaceutical industry stoked fears of drug supply shortages in Canada, several U.S. states took steps to encourage the availability of Canadian-sourced pharmaceuticals.


Q is for Quebec Court of Appeal Justice Danielle Cote who surprised the Canadian broadcasting community by overturning the section of the Canadian Radiocommunication Act that bans the importation of satellite TV signals except through a domestic dealer. The court ruled that the Act violates freedom of expression provisions found in the Canadian Charter of Rights. The government is appealing the decision.


R is for Ringtones, which now constitute 10 per cent of the global music market. SOCAN, a leading copyright collective, applied for a new tariff of 10 cents per ringtone to compensate songwriters, a proposal opposed by CRIA. The Copyright Board of Canada has scheduled hearings on the proposed tariff for February 2005.


S is for Bill S-9, a photography copyright reform bill introduced by Senator Joseph Day in October. The bill moved quickly to a Senate committee but soon after stalled, beset by concerns from groups that the changes would harm consumer rights.


T is for the Tariff 22 decision, the Supreme Court of Canada's July ruling focusing on the liability of Internet service providers for music downloading that occurs on their networks. The court sided with the ISPs, ruling that they qualify for exemption under the Copyright Act when they act as intermediaries in the transfer of data.


U is for unsolicited commercial e-mail, better known as spam. The federal government unveiled its anti-spam action plan in May. The plan included the establishment of a national anti-spam task force (I am a member of the task force), which considered legislative, technical, and educational solutions to the spam problem.


V is for Voice-over-Internet telephony, which took centre stage during a three-day hearing before the CRTC in September. A ruling on the regulatory framework for the fast-growing VoIP market is expected in early 2005.


W is for Weir v. Vaquero Energy, an Alberta Internet defamation case that raised the prospect for significant damages for online libel. The court ruled that defamation online was particularly troubling, and surprisingly awarded the plaintiff both general and punitive damages.


X is for XM radio, one of several new prospective satellite radio providers. The CRTC conducted hearings on the entry of satellite radio into the Canadian market in the fall, with Canadian artists expressing support for the opportunity to have their music reach a broader audience.


Y is for Yahoo, which launched a major spam lawsuit against the Kitchener-based Head family. Yahoo filed the suit in the United States, relying on provisions found in the U.S. CAN-Spam Act. The company accused family members of sending 94 million spam e-mails, in violation of U.S. anti-spam legislation. After Yahoo reached a settlement with the family, Microsoft and soon followed with similar suits of their own.


Z is for Zyapex and Dyapex Diet Patches, products that were the subject of a false claims investigation by the Canadian Competition Bureau. In December the Bureau settled the complaint by extracting conditions from the patch promoters that included a ban on using spam to market the products.

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