The Canadian Digital Law Decade: The Ten Most Notable Cases, Laws, and Policy Developments


The Canadian Digital Law Decade: The Ten Most Notable Cases, Laws, and Policy Developments

As the decade nears an end, there have been no shortage of decade in review pieces. This post adds to the list with my take on the most notable Canadian digital cases, legislative initiatives, and policies of the past ten years.

1.    The 2012 Copyright Modernization Act

The enactment of the 2012 Copyright Modernization Act in June 2012 brought more than a decade of copyright reform battles to a close and immediately ushered in a new round of debate and lobbying that continues until this day. The reform package was the largest copyright overhaul in years, featuring everything from an expansion of fair dealing (including education as a fair dealing purpose) to protection for non-commercial user generated content to the codification of the notice-and-notice system to legal protection for digital locks. The reforms also legalized longstanding practices such as time shifting, set a cap on liability for non-commercial infringement, and established a new provision to target websites that enable infringement.

While the law was applauded by virtually all stakeholders at the time, many spent the rest of the decade lobbying for further reforms. Publisher groups objected to the expansion of fair dealing, the music industry pushed for (and succeeded in getting) a term extension on sound recordings, the specifics of the notice-and-notice system was the subject of much litigation, and changes to the administration of copyright was pushed through late in the Liberal government’s 2015 mandate. A review of the 2012 law in 2018-19 led to the June 2019 copyright review report, which largely affirmed the changes with proposals to further expand fair dealing and the exceptions on digital locks.

2.    R. v. Spencer: The Reasonable Expectation of Internet Privacy

The longstanding policy debate over lawful access, the circumstances under which law enforcement can require access to Internet subscriber information without a court order, date back to the late 1990s. The issue led to multiple failed bills as successive governments struggled to develop a policy that worked for both law enforcement and the privacy interests of the public.

The issue shifted dramatically in 2014, when the Supreme Court of Canada issued the R. v. Spencer decision, which examined the reasonable expectation of privacy for basic subscriber information. In a landmark ruling, the court ruled that there is a privacy interest in subscriber information. While the government had consistently sought to downplay that interest, the court found that the information is much more than a simple name and address, particular in the context of the Internet. The Supreme Court was exceptionally engaged on privacy issues throughout the decade – Vu, Marakah, Cole, Fearon, Douez, Jarvis among the many cases – but it is Spencer that stands out as the game changer for the debate over Internet privacy.

3.    Equustek Solutions v. Google: Global Takedowns Come to Canada

Equustek Solutions v. Google, a 2017 Supreme Court of Canada case that considered the validity of an injunction requiring Google to remove search results on an international basis, attracted global attention from the Internet law community. The case ran through much of the decade, starting with efforts early in the decade to get an allegedly infringing site removed, court battles with Google over the breadth of a takedown order, and follow-up litigation over whether the order could be enforced in the United States.

Internet jurisdiction has always presented an enormous challenge for courts and governments. Courts fear that if they are unable to assert jurisdiction, the Internet risks becoming a proverbial “Wild West” with no applicable law. It is not technically hard to comply with global court orders. The difficulty comes with the effects of the order, since if every court asserts jurisdiction, the online world becomes over-regulated with a myriad of potentially conflicting laws. In this case, the court concluded that those seeking global takedown orders do not need to canvass the laws in other countries to consider the potential for conflicts with their request. The court also ruled that responding to a global takedown would not interfere with Google’s neutral character in providing search results nor that it involved a significant inconvenience.

4.    The Copyright Pentalogy: Five Supreme Court Copyright Cases in One Day

In July 2012, the Supreme Court of Canada issued its copyright pentalogy – five copyright decisions in a single day – that simultaneously affirmed the principle of users’ rights in copyright and the inclusion of technological neutrality within the law. The rulings sparked a book examining the decisions and years of commentary on the implications for copyright law. The decisions notably came just weeks after the Copyright Modernization Act received royal assent, resulting a fundamental reshaping of the law.

While the specifics of users’ rights and technological neutrality continue to be debated in court cases (SODRAC on technological neutrality in 2015, Keatley on crown copyright and users’ rights in 2019), the net effect of the decisions was to firmly reject claims that users’ rights was merely a metaphor. In the eyes of the Supreme Court of Canada, it is an essential component of Canadian copyright law that is integral to achieving the purpose of copyright it identified in the early 2000s in Theberge – a balance that “lies not only in recognizing the creator’s rights but in giving due weight to their limited nature.”

5.    The 2019 CRTC Policy Direction

There were many notable developments involving the CRTC over the decade – its 2016 decision on broadband access as a basic service, the 2017 completion of the net neutrality governance framework, and the 2018 rejection of the FairPlay website blocking proposal among them – but the 2019 policy direction to the CRTC stands out as a reframing of Canadian telecom policy. In the prior decade, the Conservative government issued a policy direction that emphasized market forces. By 2012, the Conservatives were already showing signs of frustration with the policy approach, appointing Jean-Pierre Blais as CRTC chair with an unmistakable mandate to shake up the regulator with a more pro-consumer perspective.

The Liberals took office in 2015 with hopes for a more conciliatory approach to the incumbent telecom providers, but by 2019, frustrated by high wireless prices and limited competition, the government issued a new policy direction premised on competition, affordability, consumer interests, and innovation. The full impact of the policy direction has yet to be felt, but with hearings scheduled on MVNOs in 2020 and the prospect of telecom law reform in the coming years, it provides the guideposts for Canadian telecom policy and completes the shift to a consumer-focused telecom policy reflecting broader public concerns with the state of the Canadian market.

6.    The Privacy Commissioner of Canada’s Bell Relevant Advertising Program Decision

Before the concerns over surveillance capitalism became a mainstream political issue and terms like Cambridge Analytica emerged as shorthand for privacy and misinformation concerns, there was the Bell Relevant Advertising Program case. In October 2013, Bell announced the launch of a targeted advertising program that planned to use its customers’ personal information to deliver more “relevant advertising.” The announcement sparked hundreds of complaints with the Privacy Commissioner of Canada and a filing by the Public Interest Advocacy Centre over the same issue with the CRTC.

Two years later, the Privacy Commissioner of Canada ruled that the program violated Canadian privacy law by failing to obtain an appropriate level of consent (Bell planned to require its subscribers to opt-out of the targeting). Bell initially refused to comply with the ruling, but quickly caved on the issue after it became clear that the Privacy Commissioner would pursue the matter in the courts.

7.    Crookes v. Newton: Is There Liability for Linking?

Liability for linking to content online may seem like an non-issue – most would likely conclude that a mere link is insufficient to ascribe liability – but it took a Supreme Court of Canada decision to confirm that position. In 2011, the court issued its decision in Crookes v. Newton, a case that addressed the question of liability for linking to allegedly defamatory content. The court’s key takeaway from Justice Abella: “I would conclude that a hyperlink, by itself, should never be seen as “republication” of the content to which it refers.”

This decision remains amongst the most important the Supreme Court has issued involving the Internet as it recognized the importance of the Internet for freedom of expression and for the need to promote the ability to use the technology to disseminate information. The decision rightly placed responsibility for defamatory speech where it belongs – with the person who posted the content. The government would do well to keep that conclusion in mind as it rushes toward new liability rules for online content.

8.    The Battle over Bill C-51

The Bell Relevant Advertising program foreshadowed the emergence of privacy as a mainstream concern, but it was the battle over Bill C-51, the Harper government’s anti-terrorism bill, that presaged how privacy would become a political issue. Introduced in the aftermath of the attack on Parliament Hill, the bill hit on a wide range of privacy-related concerns including expanded government information sharing with limited oversight. The then-newly-appointed Privacy Commissioner of Canada Daniel Therrien expressed concern about the breadth of the bill.

Bill C-51 would ultimately pass with minor changes, but it became an issue in the 2015 election as opposition parties campaigned on reforms to the legislation. While some hoped that a new government would scrap it entirely, upon election the Liberal government set out instead to focus on amendments, including the development of a more robust oversight system.

9.    The CPTPP Suspension of Intellectual Property Provisions

The link between trade and digital policy is one of the major digital policy stories of the decade. Starting with the successful fight against the Anti-Counterfeiting Trade Agreement in 2012, trade negotiations emerged as a key focus of both digital and intellectual property policy. Canada was actively engaged in these negotiations, including new trade deals with the European Union, the Trans Pacific Partnership, and the re-negotiated NAFTA. In each, IP and digital trade issues played significant roles in the discussion.

Among all the trade talks, it was Canada’s decision in 2017 to push for the suspension of unbalanced patent and copyright rules in the TPP that stands out. The U.S. exit from the TPP under President Donald Trump opened the door to rethinking some of the contentious IP provisions, including copyright term extension, digital lock rules, and intermediary liability. The decision to suspend those provisions in the renamed Comprehensive and Progressive Agreement for the Trans Pacific Partnership (CPTPP) laid bare that most countries – including Canada – were not supportive of the provisions but had been bullied into their inclusion by the U.S. Unfortunately, many of those gains were later lost with the USMCA, as the U.S. insisted on the inclusion of copyright term extension in that agreement.

10.    ISPs are Not Broadcasters: The 2012 Broadcasting Act Reference

With the policy fight over regulating Netflix and other online video services garnering increasing attention, one of the foundations of the current Canadian policy was confirmed in a 2012 Supreme Court of Canada decision. The Broadcasting Act Reference arose when the CRTC asked the courts to rule on whether ISPs could be treated as “broadcasting undertakings” subject to the Broadcasting Act when they provide access to “broadcasting” requested by end users. A decision in the affirmative would have led to demands that ISPs face regulations similar to those applied to other broadcasting undertakings.

In a decision delivered by the Court, the Supreme Court ruled that Internet providers are not broadcasters for the purposes of the Broadcasting Act when they simply transmit content to subscribers.  The court noted:

when providing access to the Internet, which is the only function of ISPs placed in issue by the reference question, they take no part in the selection, origination, or packaging of content. We agree with Noël J.A. that the term “broadcasting undertaking” does not contemplate an entity with no role to play in contributing to the Broadcasting Act’s policy objectives.

While the decision has been a bulwark against new Internet regulation, the forthcoming Broadcasting and Telecommunications Legislative Review panel seems likely to cause the issue to be revisited early next year.

Honourable Mentions (not otherwise referenced above):