Columns

Letters Of The Law: The Year In Tech Law And Policy

The past 12 months in law and technology were exceptionally active, with legislative battles over privacy and copyright, near-continuous controversy at the CRTC, and an active Supreme Court of Canada docket. My weekly technology law column (Toronto Star version, homepage version) takes a look back at 2011 from A to Z:

A is for the Amazon one-click patent, which is at the centre of a long running fight over the validity of business method patents in Canada.

B is for Baglow v. Smith, an Ontario Superior Court decision which ruled that comments on a blog should not necessarily give rise to a claim in defamation, when the person alleging defamation has a right of reply in the same blog.

C is for Century 21, which won a major case over Rogers Communications and its real estate search site Zoocasa. The case included important findings on online contracts, trespass, and copyright.

December 21, 2011 — 6 comments — Columns

Why The Government’s Lawful Access Claims Stand on a Shaky Foundation

Early next year the government will introduce lawful access legislation featuring new information disclosure requirements for Internet providers, the installation of mandated surveillance technologies, and creation of new police powers. Public Safety Minister Vic Toews, the chief proponent of the new law, has defended the plans, stating that opponents are putting “the rights of child pornographers and organized crime ahead of the rights of law-abiding citizens.”

My weekly technology law column (Toronto Star version, homepage version) notes that Toews’ stance in the face of widespread criticism from the privacy community and opposition parties is likely to be accompanied by a series of shaky justifications for the legislation.

For example, the bill will mandate the disclosure of Internet provider customer information without court oversight – that is, without a warrant. Under current privacy laws, providers may voluntarily disclose customer information but are not required to do so. Toews has argued that the mandated information is akin to “phone book data” that is typically publicly available without restriction.

Yet the legislation extends far beyond phone book information by requiring the disclosure of eleven different items including customer name, address, phone number, email address, Internet protocol address, and a series of device identification numbers. Many Canadian courts have recognized the privacy interests associated with this data.

December 12, 2011 — 10 comments — Columns

Copyright in the Balance This Week at the Supreme Court of Canada

For most of the past hundred years, the Supreme Court of Canada heard the occasional copyright case with significant cases popping up once every ten or twenty years. That started to change in 2001 with a big case reaching Canada’s top court every year or two. While that seemed like a busy schedule, it is nothing compared to the coming week, where the court will hear an unprecedented five copyright cases over the course of two packed days.

My weekly technology law column (Toronto Star version, homepage version) notes the cases feature a who’s who of the Canadian copyright and communications world with the Entertainment Software Association of Canada (ESAC), Canadian Recording Industry Association, Apple, Bell Canada, Rogers Communications, and leading copyright collectives such as SOCAN and Access Copyright among the litigants.

The common theme among the cases is that they all originate with the Copyright Board of Canada. Whether the board is asked to establish tariffs for the communication of music or the copying of materials in schools, its decisions have become highly contested and invariably subject to judicial review.

It is possible that the Supreme Court is chiefly interested in the administrative law issues raised by the board rather than substantive copyright questions. Should it choose to wade into the copyright concerns, however, two issues jump out as the key ones.

December 5, 2011 — 3 comments — Columns

Digital Economy Strategy has Become the Federal Government’s “Penske File”

Later today, Industry Minister Christian Paradis will deliver a speech that will provide an update on the government’s digital economy strategy. The speech is likely to point to the recently launched Digital Technology Adoption Pilot Program, talk about moving forward with copyright and privacy legislation, describe work on spectrum, and indicate that a decision has still not been made on the removal of foreign investment restrictions. In other words, basically repackage several earlier speeches on the same issue.

My weekly technology law column (Toronto Star version, homepage version) focuses on the lack of movement on the digital economy strategy, arguing that it has emerged as the government’s “Penske File”- the source of considerable discussion and much “work” but thus far few tangible results (for non-Seinfeld watchers, the Penske file has become synonymous for a non-existent work project).

November 29, 2011 — 10 comments — Columns

Will Paradis Fail To Can Canadian Spam?

Last year, a Quebec court upheld the largest spam damage award in the world, ordering Adam Guerbuez, a Montreal-based email marketer, to pay Facebook $873 million dollars for sending millions of spam messages to users of the popular social network. Two months later, the Conservative government passed long overdue anti-spam legislation that finally established strict rules for electronic marketing and safeguards against the installation of unwanted software programs on personal computers, all backed by tough multi-million dollar penalties.

Then-Industry Minister Tony Clement promised that the law would “protect Canadian businesses and consumers from harmful and misleading online threats,” but nearly a year later, my op-ed in the Hill Times (homepage version) notes the law is in limbo, the victim of an intense behind-the-scenes lobbying campaign that threatens to water-down the legislation such that Guerbuez, who maintains an active online presence, has publicly thanked the lobby groups for helping to keep him in business.

The spring election delayed the introduction of draft regulations for the anti-spam legislation, but since they were posted in early summer, lobby groups have used the process as an invitation to re-open the legislation and delay any implementation for months or even years.

November 28, 2011 — 9 comments — Columns