File Sharing Decision States the Case For Privacy

My regular Law Bytes column (free hyperlinked version, Toronto Star version homepage version) is the first of a two-part look at the recent Federal Court of Appeal decision involving CRIA's attempt to identify 29 alleged file sharers.

I open by noting that in an age when the media analyzes legal decisions on the basis of winners and losers, the decision left many people a bit bewildered. The court described the decision as a divided success, newspaper headlines trumpeted it as a loss for the music industry, while the Canadian Recording Industry Association declared total victory. I argue that years from now this case will be remembered not for who won or lost, but rather for its impact on privacy law and copyright policy.

This week's column focuses on the privacy aspects of the case (next week I'll take a look at the copyright policy implications).

Although some parties have sought to downplay the centrality of privacy to the case, the court opened its discussion by calling attention to the tension between privacy and copyright. It noted that "citizens legitimately worry about encroachment upon their privacy rights. The potential for unwarranted intrusion into individual personal lives is now unparalleled. In an era where people perform many tasks over the Internet, it is possible to learn where one works, resides or shops, his or her financial information, the publications one reads and subscribes to and even specific newspaper articles he or she has browsed."

This comment, alongside similar wording last summer from Justice LeBel of the Supreme Court of Canada, sends an unequivocal message from Canada's highest courts that Internet privacy involves highly sensitive information that deserves strong legal protection.


The column then outlines how the court envisions operationalizing privacy protection through the test established by the Federal Court of Appeal. With CRIA indicating that it plans to proceed with a fresh round of lawsuits, the effectiveness of these privacy protections will quickly be put to the test. While federal court judges will ultimately weigh the public interest considerations, I note that other parties share responsibility for protecting Internet privacy.

For example, Internet service providers, many of whom have proclaimed their support for customer privacy, have an obligation to play active role in any future lawsuits by rapidly notifying their customers and by raising the privacy issues with the court. Moreover, the Privacy Commissioner of Canada would do well to consider intervening in future cases since the issues at stake sit at the heart of the Commissioner's mandate.

I conclude by suggesting that CRIA should also assess the privacy ramifications of its proposed actions. While it is legally entitled to file these suits, similar actions in other jurisdictions have had no discernable impact on file sharing and put the industry at odds with the growing concern for personal privacy. That makes for a risky strategy with few winners and many losers.

Update: The Ottawa Citizen version of the column is now online. Meanwhile, Graham Henderson, the President of CRIA, has responded to the column with a letter to the Toronto Star editor. Henderson confuses the privacy protection associated with being named in a lawsuit with the privacy associated with the act of file sharing, but as the column suggests, privacy isn't CRIA's strong suit.

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