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Law_journals_in_the_Great_Library by Neal Jennings, CC BY-SA 2.0 , via Wikimedia Commons

The Law Bytes Podcast, Episode 194: CCH Turns 20 – Scott Jolliffe Goes Behind the Scenes of the Landmark Copyright Case That Ushered in Users’ Rights

Twenty years ago today the Supreme Court of Canada released CCH Canadian v. Law Society of Upper Canada, a decision that stands as perhaps the most consequential in Canadian copyright law history as it would firmly establish fair dealing as a users right and serve as the foundation for copyright law in Canada for decades to come. Leading off the hearing several months earlier for the Law Society was Scott Joliffe, an IP litigator with the law firm Gowlings. Joliffe was charged with arguing the fair dealing aspects of the case, but it was only at last moment that users right entered the picture. To mark its 20th anniversary, Joliffe joins the Law Bytes podcast to talk about the CCH case, his strategy and insights from the hearing, and his thoughts on its impact many years later.

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March 4, 2024 2 comments Podcasts
Say No to Hate Crime! by Mike Gifford CC BY-NC 2.0 https://flic.kr/p/Nc2Xsb

Why the Criminal Code and Human Rights Act Provisions Should Be Removed from the Online Harms Act

Having a spent virtually the entire day yesterday talking with media and colleagues about Bill C-63, one thing has become increasingly clear: the Criminal Code and Human Rights Act provisions found in the Online Harms Act should be removed. In my initial post on the bill, I identified the provisions as one of three red flags, warning that they “feature penalties that go as high as life in prison and open the door to a tidal wave of hate speech related complaints.” There is no obvious need or rationale for penalties of life in prison for offences motivated by hatred, nor the need to weaponize human rights complaints by reviving Human Rights Act provisions on communication of hate speech. As more Canadians review the bill, there is a real risk that these provisions will overwhelm the Online Harms Act and become a primary area of focus despite not being central to the law’s core objective of mitigating harms on Internet platforms.

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February 28, 2024 9 comments News
Technologize Responsibly by Wesley Fryer CC BY-SA 2.0 https://flic.kr/p/2qaY4b

My First Take on the Online Harms Act: Worst of 2021 Plan Now Gone But Digital Safety Commission Regulatory Power a Huge Concern

After years of delay, the government tabled Bill C-63, the Online Harms Act, earlier today. The bill is really three-in-one: the Online Harms Act that creates new duties for Internet companies and a sprawling new enforcement system, changes to the Criminal Code and Canada Human Rights Act that meet longstanding requests from groups to increase penalties and enforcement against hate but which will raise expression concerns and a flood of complaints, and expansion of mandatory reporting of child pornography to ensure that it includes social media companies. This post will seek to unpack some of the key provisions, but with a 100+ page bill, this will require multiple posts and analysis. My immediate response to the government materials was that the bill is significantly different from the 2021 consultation and that many of the worst fears – borne from years of poorly thought out digital policy – have not been realized. Once I worked through the bill itself, concerns about the enormous power vested in the new Digital Safety Commission, which has the feel of a new CRTC funded by the tech companies, began to grow.

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February 26, 2024 23 comments News
lets start over by andrew j. cosgriff CC BY-NC-SA 2.0 https://flic.kr/p/6jStC

The Law Bytes Podcast, Episode 193: The Online Harms Act is Nearly Here – A Backgrounder and Preview

The government plans to introduce the Online Harms Act later today, bringing forward long-delayed legislation that will include new responsibilities and liabilities for Internet platforms alongside an extensive complaints and enforcement governance structure. What is likely to be Bill C-63 will focus on protecting children online and will be the most contentious of the government’s Internet regulation bills given the challenge of balancing safeguards with freedom of expression.

This week’s Law Bytes podcast features a combined backgrounder and preview of the bill as I walk through the years of failed consultations, expert panels, changing ministers, and challenges in bringing it forward, highlight the key issues at stake, and contrast the online harms bill with Bill S-210, which seems destined to share the spotlight.

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February 26, 2024 4 comments Podcasts
Show me Common Sense by Adam Fagen https://flic.kr/p/24pgGRY CC BY-NC-SA 2.0

Conservatives Double Down on Support for Mandated Internet Age Verification and Website Blocking: Why Can’t Canada Get Common Sense Digital Policy?

Digital policy has been the source of seemingly never-ending frustration for years in Canada. The government chose to prioritize two flawed bills on online streaming and online news, both of which sparked considerable opposition, lengthy delays, and ultimately delivered few actual benefits (Bill C-11 faces at least another year of hearings at the CRTC, Bill C-18 is a disaster that has left many media companies worse off). Its 2021 consultation on online harms was so badly received that it was quickly shelved and has required nearly three years to recover. The policies it should have prioritized such as stronger privacy and competition rules were largely left to languish with Bill C-27 still in committee and now subject to mounting opposition over the decision fold AI regulation with minimal consultation into the bill.

Given that track record, it is hard to be optimistic as the online harms rules get set to take centre stage.

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February 22, 2024 8 comments News