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linktaxmonopoly_1 by Boing Boing (CC BY-NC-SA 3.0) https://boingboing.net/2018/06/18/licensing-news.html

Pay to Link?: Canadian Heritage Minister Guilbeault Backs Bringing the Link Tax to Canada

Last week, Canadian Heritage Minister Steven Guilbeault called into question his own government’s policies on supporting news media, suggesting that those programs should be replaced by copyright rules that would open the door to payments from internet companies such as Google and Facebook. Mr. Guilbeault indicated that a legislative package was being prepared for the fall that would include new powers for Canada’s communications regulator and what are commonly referred to as Netflix taxes and internet linking taxes.

My Globe and Mail op-ed notes the government’s support for new internet taxes should not come as a surprise. There were strong signals that the spring budget – postponed indefinitely due to the current public health crisis – was going to include expanding sales taxes to capture digital sales such as Netflix or Spotify subscriptions.

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June 23, 2020 11 comments News
E-mail unsubscribe design pattern by Per Axbom https://flic.kr/p/9fNk5f (CC BY-SA 2.0)

What the Federal Court of Appeal Anti-Spam Law Case Means for the Interpretation of CASL

The Federal Court of Appeal’s ruling on Canada’s anti-spam law puts to rest persistent claims that the law is unconstitutional. As discussed at length in my earlier post, the court firmly rejected the constitutional arguments in finding that the law addresses a real problem and has proven beneficial. The impact of the decision extends beyond just affirming that CASL is (subject to a potential appeal to the Supreme Court of Canada) here to stay. It also provides important guidance on how to interpret the law with analysis of the business-to-business exception, implied consent, and what constitutes a valid unsubscribe mechanism.

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June 11, 2020 4 comments News
First Lemonade Stand by Rebecca Schley (CC BY-NC-ND 2.0) https://flic.kr/p/6HqvXJ

CASL is Constitutional: Federal Court of Appeal Upholds Constitutionality of Canada’s Anti-Spam Law

Canada’s anti-spam law has been the target of intense criticism since its introduction in 2009 as the Electronic Commerce Protection Act. Even after the law passed in 2010, there was no shortage of effort to delay the regulations needed to put it into effect. Once it finally took effect in 2014, the criticism continued with a steady stream of fanciful suggestions that it would render promotions of neighbourhood lemonade stands illegal and warnings that the law would invariably be challenged in the courts and ruled unconstitutional. In 2017, just as critics were arguing for reforms to the law at the Industry Committee, the CRTC issued its ruling on the matter, determining that the law was in fact constitutional. The issue then proceeded to the Federal Court of Appeal, which last week unanimously upheld the constitutionality of law.

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June 8, 2020 6 comments News
I have no opinions by Mark Morgan https://flic.kr/p/qsfTSp (CC BY 2.0)

No Opinions Permitted: Broadcast Panel Rules Jokingly Criticizing Canadian Content During Radio News Segment Violates Code of Ethics

The Canadian Broadcast Standards Council has ruled that a news broadcast that jokingly criticized Canadian content violates the Canadian Association of Broadcasters’ (CAB) Code of Ethics and the Radio Television Digital News Association of Canada’s (RTDNA) Code of Journalistic Ethics. The complaint arose from a December 2019 broadcast on Toronto radio station CFRB. David McKee used his lead-in to a report on a possible Netflix tax to state “the libraries of streaming services like Netflix, Disney+ could soon have more of a Canadian flavour that nobody watches or wants if the federal government gets its way.”

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June 4, 2020 9 comments News
Trump tweet, May 29. 2020 https://twitter.com/realDonaldTrump/status/1266231100780744704?s=20

Why the USMCA Locks in the Internet Platform Liability System in the U.S., Canada and Mexico

U.S. President Donald Trump yesterday signed an executive order targeting Internet platforms after Twitter fact-checked one of his tweets on mail-in voting (the company followed up with a warning on another tweet earlier today involving glorifying violence). The order cannot simply reverse current U.S. law, but it encourages U.S. regulators to rethink how the Internet safe harbour provisions that limit liability for Internet platforms for third party content are implemented.

While the U.S. is obviously free to assess its statutory approach, one issue that received little attention is that the U.S. has effectively locked itself into the safe harbour system through its trade agreement with Canada and Mexico. The inclusion of safe harbour provisions in the agreement were viewed by some as an attempt to force Canada to adopt similar rules, yet the more likely reason for lobbying on the issue was to ensure that the U.S. itself was bound by the rules. Indeed, there were last minute efforts to remove the provision from the final deal, but those were ultimately rejected.

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May 29, 2020 6 comments News