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the fifth recommendation

Fair Duty by Meera Nair - Fri, 2019/06/07 - 17:47

Earlier this week, the Standing Committee on Industry, Science and Technology released the concluding report of the Copyright Review. In a world where political partisanship can often be described as toxic, the report is encouraging by its display of Members of Parliament of differing parties working together. While I have no doubt some political theatrics occurred behind the scenes, Members appear to have collectively taken on the challenge to probe a seemingly impenetrable area of law that touches Canadian lives on a daily basis, and reconcile  competing interests expressed by a multitude of voices.

The Official Opposition and the New Democratic Party each attached a dissenting report, as is their prerogative to do so.  Yet their combined discomfort was in relation to only two matters: (i) artists’ resale rights; and (ii) Crown copyright – that its repeal was preferable to the stated recommendation of open licensing for government-created content.

As noted by Creative Commons:

The Canadian report offers a glimmer of hope that copyright policy can be furthered in such a way to promote creativity and innovation, while at the same time protecting crucial user rights. This is contrasted with the final outcome of the European copyright directive, which reflects a disturbing path toward increasing control of the web to benefit only powerful rights holders at the expense of the rights of users and the public interest.

The report in its entirety is here, with encouraging language in its front-matter:

Reproduction of the proceedings of the House of Commons and its Committees, in whole or in part and in any medium, is hereby permitted provided that the reproduction is accurate and is not presented as official. This permission does not extend to reproduction, distribution or use for commercial purpose of financial gain. …

But before we delve into the report and reflect broadly on the thoughts and recommendations provided, one issue ought to take priority. In the letter guiding the Committee’s work, the presiding ministers invited Members to “pay special attention to the needs and interests of Canada’s Indigenous peoples as part of Canada’s cross-cutting efforts at reconciliation.” It is telling that, after dealing with matters of procedure and preparing the ground for future information-gathering and analysis, the first recommendation pertaining to current challenges is:

Recommendation 5
That the Government of Canada consult with Indigenous groups, experts, and other stakeholders on the protection of traditional arts and cultural expressions in the context of Reconciliation, and that this consultation address the following matters, among others:

• The recognition and effective protection of traditional arts and cultural expressions in Canadian law, within and beyond copyright legislation;

• The participation of Indigenous groups in the development of national and international intellectual property law;

• The development of institutional, regulatory, and technological means to protect traditional arts and cultural expressions, including but not limited to:

  • Creating an Indigenous Art Registry;
  • Establishing an organization dedicated to protecting and advocating for the interests of Indigenous creators;
  • and Granting Indigenous peoples the authority to manage traditional arts and cultural expressions, notably through the insertion of a non-derogation clause in the Copyright Act.

In a submission offered by the Association of Canadian Publishers,  Sa’ke’j Henderson (Research Fellow Miyasiwewin Mikiwahp Native Law Centre of Canada College of Law, University of Saskatchewan) had written: “The purpose of the non-derogation clause is to clarify that these Aboriginal knowledges and cultural expressions are protected and promoted under Sections 52(1) and 35 of the Constitution Act, 1982 and Section 25 of the Charter.”

In his brief, Henderson had also reminded us that “Canada has endorsed the United Nations Declaration on the Rights of Indigenous Peoples (2007).”  Unfortunately, at best, Canada could be described as having a chequered past with respect to the UNDRIP.

Meaningful attention to Indigenous issues requires deliberate effort to harmonize all federal law with the UNDRIP. So it is disappointing to read that, this week, the Conservative members of the Senate used “procedural tactics to cancel committee meetings on Bill C-262.” This private member’s bill, brought forward by NDP MP Romeo Saganash, was passed by the House  of Commons in May 2018, and aims to ensure that federal laws comport with the UN Declaration of the Rights of Indigenous Peoples.

Returning to Recommendation Five, through my remarks to the Committee and brief, I said: “Indigenous paradigms about creative endeavor and property are implicit to the system of copyright as we practice it today,” and that finding commonality may help alleviate the challenges experienced by Indigenous communities with respect to appropriate protection and use of traditional knowledge and art.

While passage of C-262 looks less and less likely, we may hope that  Members of the Opposition will ensure that Recommendation Five is acted on.

Rogers Calls for Expansion of Media Bailout to Cover Broadcast Organizations…and Thinks Netflix Should Pay For It

Michael Geist Law RSS Feed - Thu, 2019/06/06 - 10:58

My series on previously secret submissions to the Broadcast and Telecommunications Legislative Review Panel (earlier posts on Bell, Shaw, and Cogeco) continues with the Rogers submission, [Update: Rogers notes that it posted the submission on its site roughly three months after the submission deadline, so it has not been secret since early April] also obtained under the Access to Information Act. There are several notable aspects to the submission, but perhaps none more than Rogers calling for an expansion of the new tax credit for media organizations by extending the approach to broadcasters and expecting Netflix to help pay for it. The media bailout has attracted considerable criticism, particularly given the government’s implementation that has raised serious independence concerns. Before the recent controversies, Rogers envisioned expanding it:

Consistent with the Government’s tax credit proposal, we believe that a similar mechanism should be adopted for the Canadian broadcasting system. By allowing broadcasters that produce news programming to access labour tax credits, which provide an objective and arm’s length subsidy, we are confident that independent high quality news will continue to be produced in this country.

But the proposal goes even further than simply expanding the government media bailout to broadcasters. It also envisions Netflix and other non-Canadian services that do not produce news paying for the bailout by requiring them to help fund the labour tax credits:

In order to encourage and adequately support the production of professional news in Canada, we are proposing that a new policy objective be added to subsection 3(1) of the Broadcasting Act. The new objective we propose would expressly recognize that the Canadian broadcasting system should include local, regional and national news and information programming produced in accordance with professional journalistic standards. All Canadian broadcasting undertakings would be required to contribute to the production of local, regional or national news in some fashion. Those non-Canadian digital media services that do not wish to make direct investments in Canadian news programming would contribute indirectly by helping to fund labour tax credits.

Expansion of the media bailout money to broadcasters is not the only controversial aspect of the Rogers submission. For example, it opposes a net neutrality-specific provision in the law and backs a full website blocking system built into the legislation with program piracy added to the Broadcasting Act and provision allowing for content blocking by ISPs and wireless providers included in the Telecommunications Act.

Rogers unsurprisingly strongly opposes ISP regulation:

In our view, regulating those who invest in, maintain and operate the networks under the same legislative framework that is used to regulate those who create, produce, exhibit and offer the programming and platforms that use those networks would be inappropriate. This would not only increase the likelihood for market distortion, it would also act as a disincentive for telecommunications service providers to make the investments necessary to maintain Canada’s place as a world-class communications hub.

But it is all-in on regulating foreign online providers, proposing three ways to regulate foreign online providers. First, it calls for amending the existing digital media exemption order by requiring non-Canadian digital media undertakings such as Netflix to comply with obligations such as financial contributions and Canadian content requirements. Second, it wants to establish a licensing system for any service that operates in Canada by other advertising in Canada or receiving subscription fees. Third, it supports creating binding service agreements that establish the domestic obligations that could be modelled on the earlier agreement between the government and Netflix. The second proposal should come with big red warning lights as the company is effectively calling for a licensing system for the Internet in Canada.

Not only does Rogers want more regulation and payments from foreign providers, but, like Bell, it envisions requiring Netflix to pay into the Cancon system but being blocked from accessing the funds:

While non-Canadian digital media undertakings will be required to contribute to the Canadian broadcasting system through commitments made in their service agreements, we do not believe that they should be extended the right to access CAVCO tax credits or funding from the CMF and Telefilm. For reasons of equity and fairness, we believe that only those broadcast undertakings, including digital media undertakings, that are incorporated in Canada and pay and collect taxes in this country should have access to the financial support mechanisms that are largely funded by Canadian taxpayers and used to fund the production of Canadian programming.

However, Rogers wants the rules changed so it can access those funds by removing the distinction between independent producers and broadcasters. Moreover, the company seems to acknowledge that this proposal would prima facie violate Canada’s trade obligations under the USMCA. It responds that the government can rely on the cultural exemption found in the agreement to implement its approach. What it neglects to say, however, is that use of the exemption opens Canada up to retaliatory measures by the U.S. that could result in hundreds of millions in new tariffs.

[Note: the other submissions I obtained under Access to Information Act but won’t post on include the CWTA and Quebecor]

The post Rogers Calls for Expansion of Media Bailout to Cover Broadcast Organizations…and Thinks Netflix Should Pay For It appeared first on Michael Geist.

Fixing Fair Dealing for the Digital Age: What Lies Behind the Copyright Review’s Most Important Recommendation

Michael Geist Law RSS Feed - Wed, 2019/06/05 - 09:07

The long-awaited Canadian copyright review report features numerous good recommendations, many of which were rejections of industry lobbying: a rejection of new restrictions on fair dealing for education, rejection of Bell’s FairPlay site blocking initiative, and rejection of limits on safe harbours in response to the so-called “value gap.” Yet the most notable recommendation is the committee’s support for fair dealing for the digital age by expanding its scope and ensuring that it applies equally in the analog and digital worlds.

I wrote about the need to fix fair dealing for the digital age in May 2018:

there is a need to fix fair dealing by ensuring that it is not hamstrung in the digital environment. The Canadian test for fairness is consistent with those found in other countries, but there are barriers that exist for fair dealing in the digital world that are not found in the analog one. The most obvious example are Canada’s digital lock rules, which exceed the requirements at international law in the WIPO Internet treaties. As many warned five years ago, Canada has created a system that allows for unnecessarily restrictive limits on digital fair dealing. There is a need to fix this problem by establishing an exception within the anti-circumvention rules to allow for circumvention for any lawful purpose.

Moreover, the fair dealing purposes should be expanded, ideally by adopting a “such as” approach to its list of enumerated purposes that would ensure the law remains relevant in the face of new innovation. Alternatively, given Canada’s prioritization of artificial intelligence, there is a need for a fair dealing exception for text and data mining similar to that found in many other countries.

The copyright review addresses all three issues. First, the committee recommended adding much needed flexibility by allowing circumvention for purposes otherwise permitted under the Copyright Act:

However, it agrees that the circumvention of TPMs should be allowed for non-infringing purposes, especially given the fact that the Nintendo case provided such a broad interpretation of TPMs. In other words, while anti-circumvention rules should support the use of TPMs to enable the remuneration of rights-holders and prevent copyright infringement, they should generally not prevent someone from committing an act otherwise authorized under the Act.

This change will help ensure that fair dealing rights are treated in an equivalent manner in both the analog and digital worlds.

Second, it recommended adopting the “such as” approach to fair dealing to make the current list illustrative rather than exhaustive:

Parliament should make the list of purposes enumerated under section 29 of the Act an illustrative list rather than an exhaustive one. Doing so would increase the flexibility of the Act by allowing a broader range of admissible purposes to emerge from existing ones under the guidance and the supervision of the courts—for example, from criticism to quotation, from parody to pastiche, and from research to informational analysis. Such an amendment could allow new practices to fall under fair dealing, such as “reaction videos” and video game streaming. The Committee emphasizes that the purpose of a dealing is only one of many factors taken into account when determining whether this dealing is indeed fair under section 29 of the Act.

The increased flexibility would make the Canadian fair dealing provision closer to the U.S. fair use model, but retain the certainty that comes with decades of jurisprudence on the issue.

Third, committee called for the introduction of a new exception for informational analysis, the Canadian equivalent of a text-and-data mining exception to facilitate artificial intelligence and machine learning activities:

The evidence persuaded the Committee that facilitating the informational analysis of lawfully acquired copyrighted content could help Canada’s promising future in artificial intelligence become reality. The Committee therefore recommends:

Recommendation 23
That the Government of Canada introduce legislation to amend the Copyright Act to facilitate the use of a work or other subject-matter for the purpose of informational analysis.

All three recommendations would go a long to way fixing fair dealing. How did the committee arrive at the right, forward-looking conclusion? As described in Chair Dan Ruimy’s opening remarks, the committee made a commitment to hear from all stakeholders with no pre-determined policy outcomes:

As Chair, my main concern was to make sure that the review would be informed by as many different perspectives as possible. Committee members were encouraged to ask all manner of questions to better understand the impact copyright law has on Canada’s modern economy and Canadian creators, even though such questions often led to difficult discussions. We did not presume what the outcome of this lengthy and complex undertaking would bring, only that the Committee would give anyone the opportunity to present oral or written evidence. I am honoured to have witnessed such an important and thoughtful conversation.

This was a textbook example of good policy development with a committee that heard from hundreds of stakeholders, took the time to cite every single one, and let the evidence dictate their recommendations. In doing so, the committee has laid the foundation for future Canadian copyright reform.

The post Fixing Fair Dealing for the Digital Age: What Lies Behind the Copyright Review’s Most Important Recommendation appeared first on Michael Geist.

The Authoritative Canadian Copyright Review: Industry Committee Issues Balanced, Forward-Looking Report on the Future of Canadian Copyright Law

Michael Geist Law RSS Feed - Mon, 2019/06/03 - 17:35

In December 2017, the government launched its copyright review with a Parliamentary motion to send the review to the Standing Committee on Industry, Science and Technology. After months of study and hundreds of witnesses and briefs, the committee released the authoritative review with 36 recommendations that include expanding fair dealing, a rejection of a site blocking system, and a rejection of proposals to exclude education from fair dealing where a licence is otherwise available. The report represents a near-total repudiation of the one-sided Canadian Heritage report that was tasked with studying remuneration models to assist the actual copyright review. While virtually all stakeholders will find aspects they agree or disagree with, that is the hallmark of a more balanced approach to copyright reform.

This post highlights some of the most notable recommendations in the report that are likely to serve as the starting point for any future copyright reform efforts. There is a lot here but the key takeaways on the committee recommendations:

  • expansion of fair dealing by making the current list of fair dealing purposes illustrative rather than exhaustive (the “such as” approach)
  • rejection of new limits on educational fair dealing with further study in three years
  • retention of existing Internet safe harbour rules
  • rejection of the FairPlay site blocking proposal with insistence that any blocking include court oversight
  • expansion of the anti-circumvention rules by permitting circumvention of digital locks for purposes that are lawful (ie. permit circumvention to exercise fair dealing rights)
  • extend the term of copyright only if ratifying the USCMA and include a registration requirement for the additional 20 years
  • implement a new informational analysis exception
  • further study of statutory damages for all copyright collectives along with greater transparency
  • adoption of an open licence rather than the abolition of crown copyright

My submission to the Industry committee can be found here. The submission and my appearance is cited multiple times in the report and I’m grateful that the committee took the submissions from all witnesses seriously.

More Data, Less Study

Having spent a year studying copyright, it is clear that the Members of Parliament do not want to do this every five years. The report’s first recommendation is to repeal the requirement to review the law every five years, noting that frequent reviews increases the politicization and polarization of copyright without enough time to fully assess the effects of prior amendments. This is a welcome recommendation as is the committee’s recommendation for more data on copyright from Statistics Canada and the creation of research chairs focused on copyright remuneration and economics.

Fair Dealing

Based solely on the number and length of the footnotes, it is readily apparent that fair dealing, particularly educational fair dealing was a dominant issue at committee. The committee concluded that much of the change over the past five years is due to Canadian publishers struggling to adjust to market disruptions that are unrelated to the 2012 copyright reforms. Indeed, the committee notes that “the decline of collective licensing in education has arguably more to do with technological change than it does with fair dealing.” The committee was concerned with developments in the area but ultimately rejected the recommendation of the publishers and copyright collectives:

The Committee cannot endorse the proposal to limit educational fair dealing to cases where access to a work is not “commercially available,” as defined under the Act. While licensing should be encouraged, this proposal risks reducing flexibility in the educational market by favouring blanket over transactional licensing.

Instead, it calls for the government to facilitate efforts to achieve consensus on fair dealing and to review the issue again within three years.

Having dismissed the proposal to limit educational fair dealing, the committee then addresses the restrictive nature of an exhaustive list of fair dealing purposes. At long last, it recommends adopting the “such as” approach to make the current list illustrative rather than exhaustive:

Parliament should make the list of purposes enumerated under section 29 of the Act an illustrative list rather than an exhaustive one. Doing so would increase the flexibility of the Act by allowing a broader range of admissible purposes to emerge from existing ones under the guidance and the supervision of the courts—for example, from criticism to quotation, from parody to pastiche, and from research to informational analysis. Such an amendment could allow new practices to fall under fair dealing, such as “reaction videos” and video game streaming. The Committee emphasizes that the purpose of a dealing is only one of many factors taken into account when determining whether this dealing is indeed fair under section 29 of the Act.

The increased flexibility would make the Canadian fair dealing provision closer to the U.S. fair use model, but retain the certainty that comes with decades of jurisprudence on the issue.

The committee also called for the introduction of at least one new exception: informational analysis, the Canadian equivalent of a text-and-data mining exception to facilitate artificial intelligence and machine learning activities.

Internet Safe Harbours and Site Blocking

The committee report provides an extensive review of safe harbours for Internet platforms and ISPs.The committee rejected proposals to limit the safe harbour provisions in the Copyright Act. In fact, the committee even expresses concern with bringing notice-and-takedown to Canada:

The Committee finds it questionable, for example, that an OSP’s content management policies would require taking down or de-monetizing content uploaded on a platform before giving its uploader the opportunity to respond to allegations of copyright infringement.

Instead, it simply calls for ongoing monitoring of developments around the world.

With respect to site blocking, the committee rejects the creation of an Internet piracy system such as the FairPlay proposal, concluding that the courts must be involved:

The Committee does not, however, support the development of an administrative regime to these ends. It is for the courts to adjudicate whether a given use constitutes copyright infringement and to issue orders in consequence. The courts already have the expertise necessary to protect the interests of all involved parties.

It therefore recommends changes to facilitate court orders, subject to “paramount importance be given to net neutrality in dealing with impacts on the form and function of Internet in the application of copyright law.”

Fixing the 2012 Law: Digital Locks, User Generated Content and Notice-and-Notice System

The committee provides several recommendations designed to address shortcomings arising from the 2012 reforms. For example, it examined the issue of the restrictive approach to Canada’s anti-circumvention rules, often referred to as digital locks. The committee recommended adding much needed flexibility by allowing circumvention for purposes otherwise permitted under the Copyright Act:

However, it agrees that the circumvention of TPMs should be allowed for non-infringing purposes, especially given the fact that the Nintendo case provided such a broad interpretation of TPMs. In other words, while anti-circumvention rules should support the use of TPMs to enable the remuneration of rights-holders and prevent copyright infringement, they should generally not prevent someone from committing an act otherwise authorized under the Act.

This change – which was widely recommended when the law was first established – would ensure that fair dealing rights are treated in an equivalent manner in both the analog and digital worlds.

The committee also recommends review of the user-generated content provision to ensure that creators of non-commercial USG are not held liable for unintended copyright infringement.

The committee recommends keeping the notice-and-notice system but wants to fix the problem of notices with settlement demands still being forwarded by ISPs due to the challenge of easily identifying the content of notices. To address the issue, it recommends new regulations that require a machine-readable format to better automate the system.

Term Extension

The committee noted that it heard arguments both in favour and against copyright term extension (in a telling comment, the Canadian Heritage report said it did not hear from anyone who opposed term extension). The committee recognized there may no alternative but to extend copyright given the USMCA, but it recommended limiting the harm by only doing so if the agreement is ratified. Moreover, it recommended establishing a registration requirement for the additional 20 years:

The Committee believes that requiring rights-holders to register their copyright to enjoy its benefits after a period equal to the life of the author plus 50 years would mitigate some of the disadvantages of term extension, promote copyright registration, and thus increase the overall transparency of the copyright system.

As part of its copyright term recommendations, the committee also recommends establishing a reversion right for creators after 25 years, an approach that matches the Canadian Heritage recommendation.

Statutory Damages

The committee rejected calls for eliminate the non-commercial statutory damages cap established in 2012. Instead, it calls for amendments that would keep both the upper and lower limits consistent with inflation.

The committee also stops short of calling for statutory damages being added in all copyright collective cases as was sought by Access Copyright. However, it was sympathetic to the arguments, therefore calling on the government to evaluate the forms of statutory damages available, recommending:

The Committee is thus inclined to allow any collective society to recover an award in statutory damages but finds the current section 38.1(4) of the Act to be inadequate to implement such a policy. Should Parliament extend this remedy to all collective societies as well as the rights-holders who have authorized them to act on their behalf, it should do so with a more sophisticated regime that reflects, notably, the following policy objectives: encouraging fair licensing practices, deterring copyright infringement, enabling courts to award proportional statutory damages that account for different types of tariffs, and ensuring that proceedings before the Board proceed efficiently and in a timely manner.

Copyright Collective Transparency

The report features two recommendations on copyright collective transparency:

Recommendation 35
That the Copyright Board of Canada review whether provisions of the Copyright Act empower the Board to increase the transparency of collective rights management to the benefit of rights-holders and users through the tariff-setting process, and report to the House of Commons Standing Committee on Industry, Science and Technology within two years.

Recommendation 36
Given the important role of collective societies in the copyright framework and in the collective administration of rights, that the Government of Canada consider the benefits and mechanisms for increasing the transparency of collective societies, particularly with regards to their operations and the disclosure of their repertoire.

Crown Copyright

It would appear that crown copyright was among the most contentious issues among committee members as it garnered dissenting opinions from both the Conservatives and NDP.  Both opposition parties recommended the abolition of crown copyright. The report (the Liberals on this issue) stopped short of recommending the abolition of crown copyright, calling instead for the adoption of an open licence. The full recommendation is lengthy and complicated, seeking to increase access but retain some government powers over works.

Emerging Issues

One of the very first recommendations addresses indigenous copyright issues with several recommendations for further action.  This issue has certainly captured the attention of the committee and is likely to receive increased focus on the months ahead.

The committee stops short of recommending a new artists’ resale right (as the Heritage report did). Instead, it calls for a consultation on the issue with a report back to the committee within three years. The Conservatives dissented from the recommendation.

The committee includes a termination right for artists recommendation that is consistent with the imbalance between creators and publishers/record labels. The report notably cites Music Canada’s Graham Henderson to counter concerns that termination would hurt the sector, stating:

The notion that providing a termination right to creators would somewhat hinder the economic exploitation of copyrighted content suggests that creators lack entrepreneurship, but like Graham Henderson, President and CEO of Music Canada, said, “every musician is a businessman, now more than ever.”

The committee also called on the government to consider amending the law to clarify ownership of computer-generated works.

Despite calls from some to adopt EU-style linking rights, the committee did not recommend those reforms. Instead, it called for a study by Canadian Heritage on remuneration of journalists, the revenues of news publishers, the licences granted to online service providers and copyright infringement on their platforms, the availability and use of online services, and competition and innovation in online markets, building on their previous work on Canada’s media landscape.

The post The Authoritative Canadian Copyright Review: Industry Committee Issues Balanced, Forward-Looking Report on the Future of Canadian Copyright Law appeared first on Michael Geist.

The LawBytes Podcast, Episode 14: Big Data, Privacy and Democracy – A Conversation With Nathaniel Erskine-Smith on the International Grand Committee

Michael Geist Law RSS Feed - Mon, 2019/06/03 - 09:05

The debate over big data, privacy and its implications for democracy came to Ottawa last week as the International Grand Committee brought together the world’s biggest technology companies, politicians from around the world, and leading thinkers. Liberal MP Nathaniel Erskine-Smith, the Vice-Chair of the Standing Committee on Access to Information, Privacy, and Ethics joins the podcast this week to reflect on the three days of hearings, the prospect for global reforms, and what comes next for the committee.

The podcast can be downloaded here and is embedded below. The transcript is posted at the bottom of this post or can be accessed here. Subscribe to the podcast via Apple Podcast, Google Play, Spotify or the RSS feed. Updates on the podcast on Twitter at @Lawbytespod.

Episode Notes:

International Grand Committee on Big Data, Privacy and Democracy

Credits:

CBC, Politicians Grill Facebook, Google, Twitter over Privacy, Disinformation
CBC, Facebook’s Mark Zuckerberg Ignores Subpoena to Appear at Privacy Hearing

Transcript:

LawBytes Podcast – Episode 14 | Convert audio-to-text with Sonix

Michael Geist:
This is Law Bytes, a podcast with Michael Geist.

CBC News:
The world’s largest tech firms were on the defensive today in Ottawa. Canada hosted a committee of politicians from nearly a dozen countries which got the chance to grill representatives from Facebook, Google, and Twitter about how they manage data, how they handle the spread of misinformation, and whether they’re a potential threat to democracy. The committee also heard from observers of the industry who are worried about what they’re seeing.

Michael Geist:
The debate over big data, privacy, and its implications for democracy came to Ottawa last week as the so-called international grand committee brought together the world’s biggest tech companies, politicians from around the world and leading thinkers for three days of hearings. The international grand committee hearing the second of its kind was led by the House of Commons Standing committee on Access to Information, Privacy and Ethics who were joined by elected officials from the U.K., Germany, Ireland, Singapore, and many other countries. In the hot seat where the tech and social media companies: Facebook Google Twitter Apple Microsoft and Amazon. The discussion often became contentious.

MP Peter Kent:
Does Facebook still defend the concept that it doesn’t have to be true to be your platform.

Kevin Chan, FB:
I understand where you’re getting at. I do think that if I if you’ll permit me the way I would like to maybe talk about it a bit.

MP Peter Kent:
Yes or no it wouldn’t work yes or no would work.

Kevin Chan, FB:
That’s why we’re here. We would welcome basic safe.

MP Peter Kent:
So this is a learning experience for you.

Kevin Chan, FB:
To welcome basics Mr. Kent basic safe. I think.

MP Peter Kent:
I asked that with respect and civility.

Kevin Chan, FB:
We would welcome basic standards that lawmakers can impose on the platform about what should go up and what should come down.

Michael Geist:
The controversy didn’t stop with what the company said but also who said it the decision of top executives such as Facebook Mark Zuckerberg and Sheryl Sandberg to give the entire hearing a miss sparked widespread anger from across the political spectrum.

MP Charlie Angus:
It’s really important for Facebook and the other data giants to realize that their contempt of democracy is their contempt of citizen rights. Their belief that because their billionaire frat boys from Silicon Valley they’re there above all of us little people that they they’re running on a road and if they continue to show contempt for our democracies our democracies will push back.

Michael Geist:
Hours after the hearings concluded I sat down with Nathaniel Erskine Smith a Liberal MP from the Toronto riding of Beaches East York and vice chair of the committee to discuss the intensive three days, the prospect of global reforms, and what comes next for the international grand committee.

Michael Geist:
Thanks so much for joining me on the podcast.

MP Nathaniel Erskine-Smith:
Thanks for having me.

Michael Geist:
So we are just a few hours after the conclusion of three days of what I assume I’m exhausted was pretty gruelling hearings for the grand committee which made for a really good television or at least streaming for those that were following. That’s right and certainly attracted a lot of attention and I want to get your immediate thoughts given that it’s only been a few hours since it concluded. But first for those that weren’t following along. Can you just explain what the grand committee is.

MP Nathaniel Erskine-Smith:
Sure. So the grand committee the word grand by the way this would only have been created by UK parliamentarian. It is an international committee made up of more than 10 parliaments from around the world who are all focused on similar issues related to democracy big data and privacy. And this really was born out of an initial cooperation between our Canadian committee and the U.K. committee where we are both going down this rabbit hole of Cambridge analytics. And there was I communicated first with Christopher Wylie who connected me with the U.K. chair Damian Collins. We had direct interactions to assist one another in our investigations and out of that we went to a roundtable of parliamentarians in Washington in July of last year and started this conversation. We had Bob Zimmer our conservative chair was there with me in Washington and he and Damian then said What else can we do. What can we do next. And Damian at the time was adamant that Mark Zuckerberg needed to attend before the UK Parliament. He’d blown them off. And so the initial thought was well it’s much more likely that we get a serious witness like that if we join forces. And so started out with Canada the UK and then ballooned to 10 plus parliaments.

MP Nathaniel Erskine-Smith:
We had an initial meeting with Richard Allen a V.P. of global policy for Facebook in London in November December of last year and then so this is the second major meeting. And it really is one to raise awareness and to hold the platforms accountable for some of their bad practices and negligence. I would say and, two, to sort of build on the sense of global cooperation when we have problems that are global in nature because data so freely flows across borders and companies are global in their reach. How do we work as Parliamentarians across countries to have a global solution.

Michael Geist:
It’s interesting now. I won’t get into some of the that ability to cooperate on some of these issues and who shows up and who doesn’t show up even when you come together. But what are some of your immediate thoughts. How do you feel the last few days which of course included the platforms if not the senior executives along with any number of different experts as well.

MP Nathaniel Erskine-Smith:
So what I think is really important that we expanded beyond Facebook and we add Facebook Google Twitter on one panel together and then we had Amazon Apple and Microsoft on another panel together. We also had people who have been writing and thinking about this a great deal from Taylor Owen Ben Scott Heidi Tworek, and Shoshana Zuboff. So there was a lot of good thinking brought to bear at the outset that we could sort of draw from and then put questions to the platforms and big data companies. It was frustrating obviously at times. There were an initial frustration just because very senior people did not attend. When I think they ought to have attended. Also frustrating some of the answers that were given but I would also say I have reasons for optimism when I see. All of these companies now say we need stronger privacy data protections and that if you asked me three years ago they simply weren’t saying they’re pushing back against that. They were lobbying against the GDP. It’s true. Now they’re all saying GDP or potential GDP plus we have. An acknowledgement that they are all moderating content and there needs to be public accountability to that content moderation and different answers probably depending upon the jurisdiction but there needs to be some public facing cooperation between these companies and they can’t be policing this all themselves on their own. We had an acknowledgement that I wasn’t expecting actually that there should be corporate responsibility for the algorithmic impacts or the impacts of the algorithms that that they employ. So there were the beginnings I think of a pretty fruitful conversation and then some additional frustrations where they blew off I think a very useful conversation on competition didn’t really take consumer protection completely to heart. I don’t think. And obviously in the end they didn’t send people who were really gonna be able to make decisions for their companies.

Michael Geist:
Yeah that’s right. And that’s that last point really attracted a lot of attention. I know from you and from from a lot of other people given that particularly the senior executives at Facebook Zuckerberg and Sheryl Sandberg didn’t show up. But of course that’s true for a number of the larger companies.

MP Nathaniel Erskine-Smith:
It was true for all the companies I think Twitter took it the most seriously actually from the people that they sent. Interestingly though particularly with respect to Facebook because they had failed to attend before the previous committee in the UK we had taken the exceptional measure of issuing a summons and more than that I think just as a matter of basic honesty if you’re the CEO of a company and two months ago on March 30th you write I care about privacy I care about competition I care about protecting elections and addressing harmful content online. I want to discuss these issues with lawmakers from around the world. And then you have 10 countries represented in a forum discussing these very issues and you don’t even make an effort and there is no explanation as to why he couldn’t attend. I mean Tim Cook got back to us and said he had another engagement and he was interested in this conversation. Whether or not that’s true that at least engagement. So I found that pretty frustrating in the end.

Michael Geist:
So does that ultimately in a sense undermine the kind of message that the companies are bringing. I mean you talked about that they’ve shifted or moved somewhat in terms of the growing acceptance of privacy regulation perhaps algorithmic transparency and the like but still there’s still not at the point that once once you leave the United States the senior executives are going to show up in.

MP Nathaniel Erskine-Smith:
I think. Yeah in a way it ultimately comes out of trust. And we had Kevin Chan from Facebook before our committee well over a year ago deal with the Cambridge analytics scandal and he acknowledged there’s a loss of trust here and we need to rebuild that trust. I don’t think it goes a long way to rebuilding that trust when there are in some cases platitudes and in some cases even a serious effort to engage in a policy conversation but no effort to engage in a very senior level.

Michael Geist:
It is striking. They do appear at some of those top executives to appear in the United States. The US is not represented on your committee. Although there were U.S. representatives that appeared. Are there concerns that this ultimately becomes of rest of the world elected officials versus U.S. company type of dynamic or at least what’s the impact of not having the U.S. government at the table for these discussions.

MP Nathaniel Erskine-Smith:
Yeah I hope it doesn’t become that I don’t think we need the U.S. government as it were but it certainly would have been helpful to have someone like Mark Warner or Rubio or Amy Klobuchar three people who had participated in the parliamentary Roundtable in Washington last July. I don’t know I was not corresponding with those folks in the way that the clerk was so I don’t know why it was the case that it was declined. But I think you make a good point that in the end if you want to take these if you want to tackle these issues in a very serious way if you don’t have a body like the EU doing it with you or a body country like the US doing it with you it can be difficult to do in Canada and the UK are an incredibly important start we had Germany here that was incredibly important. Ireland is excellent on these issues as well. But. Does it help that you’re adding Morocco to the conversation if you’re not adding some of the bigger players. Maybe not. We did have France when we were in the U.K. and we had Mexico here. So I think there are substantive you know there are serious jurisdictions that are if you look at Germany in particular Germany has done a lot of different very interesting things. There was a German MEP that brought the GDP forward and their own laws dealing with harmful content online. Their German competition authority has had some very interesting things. So that was helpful to have them there. So yes we’d like the US along with saying of course we want the US there but I think it was positive regardless.

Michael Geist:
Yeah. No I’d certainly highlight countries where we’ve been doing some really innovative things. How do you feel Canada fits within that dynamic given that many of the countries you just mentioned have been more aggressive in terms both of some of their regulatory or regulatory approaches or their laws and certainly the enforcement powers that their enforcement agencies say the Privacy Commissioner data protection commissioners have differs from what we have here.

MP Nathaniel Erskine-Smith:
So my bias is to say. As a parliamentarian sitting on the privacy committee I think our Privacy Committee has been very strong on these issues over the last three years. So as parliamentarians we’ve been quite good at pushing these issues forward. As a parliament overall and certainly as a government I think we’ve come late to the to this issue in a serious way. I’m heartened by the fact that there’s now a digital charter saying here are some principles and they include addressing competition issues addressing privacy and data protection in a more serious way. But. Interestingly I was in Brussels I forgot how many weeks ago I met with the EU Data Protection Supervisor on a number of people who are who have thought and are working on privacy issues there and they all spoke very highly of academics here in Canada, of past privacy commissioners here in Canada who have in many ways laid the intellectual groundwork for the GDPR. So the EU looks to count Canadian ideas and Canada doesn’t look too good at that it hasn’t been a bit frustrating but I will say now I think we’re at a place where it’s likely that all three parties run on privacy and digital rights platforms and there’s a strong likelihood that whoever forms government after October that we’re likely to see these issues continue in some earnest.

Michael Geist:
Yeah I’m glad you mentioned that because it’s one of things that was notable and I think I saw someone comment on it on Twitter during the course of the hearing is that it’s tough to find many issues on Parliament Hill where everybody seems to be in agreement. This appears to be one of them where certainly all three of the major parties participating in this process seem to be coming at these issues from the same perspective.

MP Nathaniel Erskine-Smith:
Yeah someone said to me. They couldn’t tell which party we represented until they looked us up which I think is a testament to the non-partisan nature of our work.

Michael Geist:
I think that’s that’s notable and in some ways it does augur well for the better I suppose for the digital Charter One of the criticisms of the charter is it comes pretty late in the mandate and that’s fair. So then the question becomes well what happens post election. But if you’ve got all all the parties singing from roughly the same songbook on many of these issues there’s some promise that whoever forms government will see this as an issue they need to take forward.

MP Nathaniel Erskine-Smith:
I think that’s right and I think much depends upon what each party puts in the platform to build out that mandate. Post-election. I was I say I’m hardened by the digital charter because it’s been such a battle. I introduced a bill last June to give the Privacy Commissioner greater powers and enforcement powers looking at fines proactive audits and making orders. And to me this is the no brainer. We were recommended this at our committee twice now. This has been many previous commissioners have said we need these powers. Other countries have them. They work. The lack of engagement I got a year ago versus the really serious engagement is happening now with respect to the digital charter and looking ahead and I think it’s very positive and I’m I’m optimistic that we’re going to see in the Liberal platform at least a real effort to address privacy and digital rights issues.

Michael Geist:
Yeah well that is encouraging and it’s it’s clear just as the companies have shifted. That hasn’t happened by accident. It’s happened because committees like yours have called attention to this and the public is genuinely interested and I think increasingly concerned about some of these issues.

MP Nathaniel Erskine-Smith:
Half the battle at committees like ours is raising public awareness.

Michael Geist:
And one can see you guys have done a done a good job. I mean certainly the reports that you put up get referenced in the digital charter background they get referenced by people repeatedly as sort of providing the foundation for potential.

MP Nathaniel Erskine-Smith:
I now know at least one person read our committee.

Michael Geist:
There’s no doubt more than one now the committee just now these hearings dealt with a whole number of pretty interesting issues some of them really challenging I thought we might touch on a couple. Right off the bat is this challenge on the content side. We get to the privacy side of what expectations we have of companies like Facebook but of course and include others to play a moderating role over their content and the example that was used was the Nancy Pelosi video and you had some members some elected officials who were basically why are you Why did you not take this down and this YouTube took it down you haven’t taken it down and Facebook response was what we have. It’s not that we haven’t done anything. But no we have removed it. What are some of your thoughts about how we navigate what is an incredibly clearly incredibly challenging issue on content that one can make the case causes harm but at the same time it isn’t clear that it’s unlawful and the dividing line between content like that and other parody type videos can be really tough to navigate.

MP Nathaniel Erskine-Smith:
So a couple of things. One I think it is more helpful for a committee like ours and an international committee like ours to focus on areas where we can make real inroads and there isn’t the same level of disagreement. So I think it was Taylor Owen who made the point that there are some easy issues that you can tackle and there are some difficult issues and harmful content on his own is really difficult. And then we immediately went to this Pelosi video that is actually really difficult example even in the realm of the already difficult harmful content conversation.

MP Nathaniel Erskine-Smith:
There are two tracks at which we should regulate where one track at which we regulate content which is where it’s illegal. And the second track is where platforms will obviously have to look to our public rules but we’ll also have community standards that they want to enforce as private companies and so. Is that Pelosi video illegal no. Does it violate their community standards. If it’s up then no and the extent to which it has violated their community standards they’ve taken action by downgrading and providing more context. I don’t know. I think perhaps I could do a bit of a better job of framing that context. It’s not just when you share but when you repress view it. But my view which is consistent with committee recommendations that we’ve made. Whereas obviously illegal content that is being hosted. There are really easy categories. You take child porn or terrorism but it is obviously illegal and it’s flagged for companies and they don’t take it down within a timely way. I’m perfectly comfortable imposing financial sanctions. Germany has a rule like this and whether it’s that exact set of rules or something modelled on those rules. I’m I’m comfortable with that level of enforcement. When you’re balancing freedom expression and protecting harms protecting its harms hate speech. If it’s at the criminal level of hate speech was are already a really high bar. I’m OK with that too. Where we are forcing companies to take down criminal hate speech or criminal harassment criminal threats obviously illegal content where it’s a grayer area. I think.

MP Nathaniel Erskine-Smith:
And public appeal mechanism to determine the illegality would be more comfortable making sure there’s some public accountability to the content decisions and around outsourcing this to the platforms. I would be more comfortable with certainly where Facebook is and determine their community standards. There is no public appeal as far as it goes. But if they are making a decision not based on standards. But public law surely there should be some judicial review as far as that goes. So I would be more confident in the harmful conversation and harmful content side if we focused on clearly illegal content and how we address that first because that even can be quite hard just from an enforcement perspective.

Michael Geist:
We can. I mean I think your your response highlights how much nuance there has to be on this. I mean there there’s sometimes feels like there’s a tendency to say you know you broke it you bought it fix it and take action. But it’s clearly not that simple especially when you’re dealing with a wide range of content some of which we can understand why people object to it but it’s lawful.

MP Nathaniel Erskine-Smith:
Ok. So what do you think about this. I’ve been turning over my head this notion. So there are two factors when we look at content in a way there’s the nature of the content. And if it’s harmful. You know I mentioned child porn terrorism obviously take it down. It’s obviously illegal content. We can talk about liability rules even if they’re there otherwise. In a previous life they could they could look at safe harbor. No we’re just the hosts were out promoting this content. We say oh actually we’re going to chip away at Safe Harbor where is all this obviously illegal. And the EU is even now looking at doing that with respect to some copyright I’m not wholly familiar but I know there’s there’s now a sort of a path towards chipping away at Safe Harbor. More and more depending upon the jurisdiction but at least I understand where we’re not going to last Safe Harbor where obviously illegal content because of the nature of the content. Then there’s the active participation in the promotion of the content. And if they’re not a mere host but they are actively promoting the content through use of the recommendation function on YouTube or the news feed algorithm. More people are going to see that there will be more impressions because of their active participation and there I don’t know what the answer is but there does seem to me there is another path for liability and Section 8 of these arcane broadcasting rules in Canada. Broadcasters can’t broadcast false and misleading news I don’t know whether that should be a rule that we have or not but it is a rule we have. And if they are employing an algorithm that increases impressions. In theory I don’t really know what. Why they get treated differently from broadcasting content that only if you look at it.

Michael Geist:
Yeah well I mean the starting point would be to ask whether or not they’re in fact broadcasting which that I don’t think they are.

MP Nathaniel Erskine-Smith:
But I don’t think they are what I think they are. There’s no reason that you wouldn’t take rules that apply to other categories and say if you’re doing something similar we’re gonna deem you to be platforms that give me a new set of rules on platforms.

Michael Geist:
Well I certainly think we can look to our existing rules to identify a little bit with the contours are around potential liability and another thing of course that makes Canada differ from some of the other countries that were around the table today is we’ve got a Charter of Rights and Freedoms which invariably means that some of that our analysis is going to differ from a country.

MP Nathaniel Erskine-Smith:
So I’ve asked the online falsehoods bill that Singapore was referencing.

Michael Geist:
No we wouldn’t have that and I don’t I’m not sure that we’d have what we’re starting to see in Australia and even the U.K. around harms. I think that the we have stronger protections of free of expression. I think you’re absolutely right around clear cut criminal content and and from everything that I’ve heard from some of those large platforms they agree as well. Facebook will tell you that the they’re able to remove terrorist related content before it ever appears the vast majority of the time and the rest come down quite quickly and child porn has always been viewed as as different from other sorts of content. But even in hate as you mentioned that you know our history around that and the cases have gone up to Supreme Court highlight how challenging it sometimes can be around some of these issues.

MP Nathaniel Erskine-Smith:
And I know that I mean I references section 8 but I think it’s rarely if ever been used this applying a law against false and misleading broadcasting false or misleading is and probably that’s because there are standards councils the broadcasters are part of the same with our news media they have their own internal ethics and the standards councils and so I think Heidi Tworek was making the point that building that ethos would be a really positive development and that makes more sense to me in some ways as a first step than trying to figure out how do we create it or debate even should we be debating liability or rules that would take down a Pelosi video that would open up a whole can of worms about content control that we probably don’t want to have.

Michael Geist:
It would you know the response to Facebook would likely raise and I think they did reference their efforts around developing some sort of oversight system there are questions as to whether I will be global in nature is it local because of course many of these are localized questions both in terms of the law and what people are comfortable with. So there’s there’s a lot of work to be done. I guess what’s changed is there is discussion about the need to do some of that work though.

MP Nathaniel Erskine-Smith:
You know it’s interesting Facebook at the last session in the UK. Richard Allen. I mean he said Well obviously if it crosses the line we take it down. It’s obviously illegal we take it down he said but maybe we shouldn’t promote it if it’s right up against that line because there’s been enough written now where the algorithm in the News Feed It doesn’t matter what reaction it gets if it gets reactions then then it will be more easily seen and promoted and so YouTube similarly in 2016 there is an engineer that said oh maybe we shouldn’t promote borderline content and recommend where line content. And in January of this year they’ve now said we’re not going to do it. And I don’t know if you have any views of this. So it’s not about requiring companies to take things down but. It might be useful to find a way to change the incentive structure where something is clearly false and misleading. That if we are to think about the algorithms we employed more in broadcasting terms. Is there room and maybe there isn’t. I don’t know. But is there room to say how do we change the incentive structure so that there is not profit motive for it rather than a penalty there is more of a discouragement. I don’t know the answer to that.

Michael Geist:
Although one of the things that I liked about the digital charter was that it did put algorithmic transparency on the table. And so the fact that we are I think recognizing that these are choices that are being made and perhaps at least the starting point is to say we need to know more about how those choices are being made. And that may ultimately lead to greater accountability for the choices that are embedded within some of those algorithm.

MP Nathaniel Erskine-Smith:
Yeah that is a place I am much more comfortable with so I won’t talk about speech and harmful content if it’s not obviously illegal and you get into these conversations even about how do we hold companies responsible for the algorithms that they are employing. It’s much easier as a starting point to say let’s make sure that there is a public facing risk assessment so we understand that if YouTube is recommending videos we might like to see. That’s a very positive benefit. But if they are recommending far right nationalist videos after certain content that is you know if they recommend Alex Jones videos to two billion times it’s not illegal but that’s probably a negative externality of a fear of their algorithm. And that should be public facing our way so that we can properly assess it and hold these companies to account.

Michael Geist:
I mean it’s interesting that the conversations moved in this direction. I think you also one point in time it was you who asked Google about scanning of emails and looking at some of some of that content we had others talking about banning personalized advertising where even though there’s talk about essentially banning or putting a hold on social media altogether which is a little more intensive a recommendation it was. What does that say. Are we now at the point where if not talking about banning technologies at least talking about getting under the hood a little bit in terms of how some of this technology works and try and marrying tech mirroring the legislative regulatory side with how the technology functions.

MP Nathaniel Erskine-Smith:
Yeah I think you’re absolutely right that it’s about getting under the hood. I would say it’s about getting under the hood and about assessing how we can take existing first principles and other areas of regulation that have worked offline. How do we make sure these are fit for purpose online and so to your point about banning certain things. We have consumer protection laws and we protect people in a couple of different ways. One to require them to opt into certain. you know if I consent to have to sign a contract is consent there. Sure. But in a consumer and a consumer. context consent sometimes isn’t enough because if I buy the phone. if I buy my iPhone I don’t have to read the Terms and Conditions. I don’t have to know that there’s an implied warranty of merchantability. Just is there because we don’t want a situation where consumers are quickly signing things and not reading things and then liable for the things that they sign. They’re busy with their lives they shouldn’t have to read contracts for everything that they purchase. Why are we suggesting that they should read contracts for every app that they purchase. Is it isn’t. I think a useful conversation have often consents that are explicit go a long way. I think the next question is are they sufficient. In full and are there certain practices. So for example I think I put two but maybe there are others and maybe I’m wrong about these two I don’t know. But it occurs to me that nobody needs to read my emails to target me for advertising. We just take them off the table. It occurs to me that no one under a certain age should be have personalized profiles made up of them for targeting purposes. We would never allow companies to do that off line. Why are we allowed into it online. So I think there are certain categories that probably we could take off the table completely and then have a consent model for everything else and explicit opt in consent largely.

Michael Geist:
You have any thoughts about how we how we do that from a legal regulatory perspective. We’ve seen how hard it is least in our country. It’s probably true for many others to even get broad based privacy reform much less delving into these kinds of issues and what what you’re putting on the table I think is really interesting and I think intuitively sounds right in terms of identifying certain kinds of behaviour that we would see as unacceptable in one area and ought to be unacceptable in the online space to do we have right now the kind of system or model in place that allows that to be operationalized.

MP Nathaniel Erskine-Smith:
Probably not. So maybe if we’re looking at wins maybe the answer is the GDPR modeled often consents and for any secondary use or anything that isn’t within them one’s reason why expectations in signing up for the app. There has to be an explicit opt in consents which is I think part of a you know there’s a consensus I think among folks like you as its various part privacy people on the on that and so maybe that’s where you start and then people look at other practice and say where consensus is built up say well actually this should be taken off the table. Probably though for kids I think that I think that’s an easy one actually to just take that off the table entirely and I would flip it and I think maybe this should be flipped in other ways too but at least for kids the onus shouldn’t be on us to prove that kids should be off the table it should be the onus on the companies show us the positive benefits for targeting kids in some way and then maybe we’ll let you do it. What’s the positive benefit.

Michael Geist:
For me it’s really in the privacy realm. The US doesn’t have much in the way broad based privacy rules but it does for kids.

MP Nathaniel Erskine-Smith:
Exactly in the sense and politically if not later that’s in the same way we work in a very non-partisan way to establish some of these recommendations so far that would be very heavy the easiest thing.

Michael Geist:
Now that makes sense. One other issue that I just wanted to touch on that you raised and I think you indicated didn’t get a great response on was the competition side of the story which is also gaining a lot of traction. What are some of your thoughts about the growing momentum. In many ways to say break up these companies or at least use to look to competition law antitrust law as a mechanism to in a sense divide up a little bit these very large companies from the different lines of business that where I think there is a feeling that part of the problem is when they merge these different lines of business together that’s where some of the harm may occur.

MP Nathaniel Erskine-Smith:
So I have spoken to people far smarter than me on this and I think that they are right that in the same way we protect consumers on price and that is one of the foundational elements of competition laws to protect consumers on price. We should also protect consumers on privacy and so acquisition mergers and acquisition decisions that should be a key consideration I think of competition regulators when they when they look at acquisitions. So what is the public interest in Facebook acquiring Instagram. Is there a great utility to us. Not particularly is there a downside to us. Not on price but your privacy actually. I think there is a real one where you had a major competitor that is the closest competitor. Now Zuckerberg can’t name a competitor one day when he attends a Congress. But Instagram was the competitor and we know that because if they weren’t if they weren’t one company now Facebook is losing users to Instagram and not having that level of competition and that ability to move from one platform to another. That protects my privacy a little bit more and maybe provide a safer space for conversation whatever the case might be. But at least on privacy that I think without question should be a consideration for our competition regulators. I know that competition authorities in Canada are thinking about this too because there’s a data forum that the competition commissioner has held at the National Arts Centre here. The other thing that I try to wrap my head around though unconsciously I don’t have any views of this is not about privacy but about just big data and innovation and it occurs to me as Amazon is today but I think the same applies to Facebook. If we use the Amazon example. They are basically taking all of the purchase decisions of consumers and adding that all up and saying well our consumers are really buying iPhone Chargers let’s get on the business of iPhone chargers. It seems really a massive amount of market power that I don’t know if that’s a good thing or not. But our competition regulators should be looking at it. When Facebook acquires third party apps which they tend to do. Are they sharing the third party app data that they have or are they commingling that with the data that they hold about people and then they’re able to make much better decisions about the growth of those apps and which one is likely to grow the fastest in which one is likely to be the best. Again that seems if they are doing that. That would be of great concern to me if I was a competition regulator. So there are lots of existing abuse of dominance and sort of unfair competition rules as we have them. I think they could be playing a much stronger role in the space.

Michael Geist:
No I think there is a there’s been an awakening on some of those issues and just like we’re talking much more about algorithmic transparency and talking about some of the different kind of regulatory solutions clearly that discussion is going to continue and it’s interesting.

MP Nathaniel Erskine-Smith:
Now the conversation has moved not from debating whether we should do it although the companies denied that we should do it. Of course they did but on competition at least. But the real conversation is moved to operationalizing the ideas so algorithmic transparency and explainability in the GDPR is accepted. It’s more just a question of how do you effectively make it a reality. And I think similarly with competition. I think competition authorities now recognize we have to address privacy and we have to address big data. How do we properly do this.

Michael Geist:
So I think it’s right. I see the lights flashing which tells me to think you’re headed for a vote. A few minutes or so before I let you run though what next for the grand committee.

MP Nathaniel Erskine-Smith:
So we will be meeting in Ireland in November. We is maybe a generous term in the sense that I’m up for re-election however and we’ll see. But there hopefully there will be Canadians that then hopefully I’ll be there and hopefully Charlie and Bob will be there as well. And it will continue. It’ll be up to Ireland in the same way we frame the debate here and added more ideas to the conversation than the first meeting. It’ll be up to Ireland to decide where we take this next. And I think my view has generally been initially accountability for companies was required. They were there now at the point where the public cares. They understand the need to act in many ways. You know we constantly give him a hard time and grandstand a little but the companies aren’t really trying to act in many ways whether it’s election interference or you know improving privacy rules. They’re now saying the right things and doing some of the right things. And I think it’s about continuing to have as much of a constructive conversation as possible at this point. How do we get serious cooperation from legislators around the world. But with companies around the world.

Michael Geist:
So I mean that’s right. I think that represents a really positive outcome in the privacy world for many years now. There’s been a lot of talk about the rule that the international conference of privacy and data protection could data protection commissioners plays where you get kind of the cross cultural cross country discussion.

MP Nathaniel Erskine-Smith:
I aasked about that about to the U.S. Election Commission Commission because I think what the privacy commissioners around the world do is incredible and more regulators should look to do it.

Michael Geist:
It’s had a real impact. It’s striking to see it happening effectively at an elected official level where we get politicians come they’re so rarely in fact having that kind of discussion is really interesting and I think that the effect of getting those different perspective surely has an impact that you’re able to bring back domestically as well when you hear what’s happening elsewhere and what some of the perspectives are.

MP Nathaniel Erskine-Smith:
Yeah I think it helps move the conversation forward in governments in the end where you have parliamentarians. You mentioned earlier but the fact that it’s been non-partisan it the fact that the public now care is more and more and more about these issues obviously they do we live our lives increasingly online we want ourselves and our kids to be protected online. So I think governments not just ours but in the UK and France is trying to do is Germany is ahead of us. But all of these and California when you talk with the US is not the table but probably you know if we’re focusing on maybe we should try to tackle getting a legislator from California to Ireland because there are jurisdictions in the U.S. They’re doing really important work on this too. But I think governments are now seized with this in a really serious way in a way that they weren’t. If you asked me three years ago when we started toiling away on these privacy issues whether I thought the government was going do anything other than much more skeptical than I am today that’s it.

Michael Geist:
Well thanks so much for joining me.

MP Nathaniel Erskine-Smith:
Thank you.

Michael Geist:
That’s the Law Bytes podcast for this week. If you have comments suggestions or other feedback, write to lawbytes.com. That’s lawbytes at pobox.com. Follow the podcast on Twitter at @lawbytespod or Michael Geist at @mgeist. You can download the latest episodes from my Web site at Michaelgeist.ca or subscribe via RSS, at Apple podcast, Google, or Spotify. The LawBytes Podcast is produced by Gerardo LeBron Laboy. Music by the Laboy brothers: Gerardo and Jose LeBron Laboy. Credit information for the clips featured in this podcast can be found in the show notes for this episode at Michaelgeist.ca. I’m Michael Geist. Thanks for listening and see you next time.

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The post The LawBytes Podcast, Episode 14: Big Data, Privacy and Democracy – A Conversation With Nathaniel Erskine-Smith on the International Grand Committee appeared first on Michael Geist.

Cogeco Warns Against Online Video Services Undermining Canadian Sovereignty in BTLR Submission

Michael Geist Law RSS Feed - Fri, 2019/05/31 - 10:49

Cogeco, the fourth largest cable operator in Canada (and number two in Ontario and Quebec), warns the broadcast and telecommunications legislative panel about the dangers of unregulated video services such as Netflix to national sovereignty in its previously secret submission. Obtained under the Access to Information Act (much like the previously discussed Bell and Shaw submissions), the Cogeco submission opposes new digital consumer protections and net neutrality rules but strongly supports increased regulation for online video services.

The consumer side of the submission warns against regulation. For example, it states the following on net neutrality:

Net neutrality should not be defined and mandated in new federal legislation, as issues respecting net neutrality can and should continue to be supervised and regulated by the independent federal regulatory agency in accordance with evolving technical and market conditions.

It also warns against federal digital consumer protection rules:

Attempting to unilaterally implement in the new federal legislation a sector-specific layer of new rights or safeguards for ‘digital consumers’ would likely create more issues than it would solve due to increased complexity, confusion, conflicting requirements, jurisdictional issues and ensuing legal challenges.

While consumer protections are off-limits for Cogeco, it strongly supports regulating online video services such as Netflix. The submission argues against ISP taxes, noting the costs the network costs and the impact new fees would have on network access and affordability, but favours regulation of online video services. contributions apply to all. What is notable about the Cogeco submission is its attempt to frame Netflix regulation as a matter of safety for Canadians rather than simply a cultural issue:

This public policy imperative is not only driven by the need to ensure that Canadian content is available to Canadian consumers on all distribution platforms and that all players within the Canadian broadcasting system compete and support Canadian content funding on a level playing field, but also by the need to ensure that the Canadian broadcasting system does not become an unregulated conduit for content that undermines Canadian sovereignty, the safety and well-being of Canadian consumers, or the integrity of their democratic institutions.

The arguments regarding a level-playing field have always been far weaker than its proponents its acknowledge. The suggestion that Netflix puts the safety and well-being of Canadian consumers at risk is even weaker.

The post Cogeco Warns Against Online Video Services Undermining Canadian Sovereignty in BTLR Submission appeared first on Michael Geist.

Canada Introduces USMCA Implementation Bill…Without a General Copyright Term Extension Provision

Michael Geist Law RSS Feed - Thu, 2019/05/30 - 10:07

The Canadian government tabled Bill C-100 yesterday, the bill to implement the Canada-US-Mexico Trade Agreement. I will have future post on the key provisions, which include new criminal provisions on trade secrets and tampering with rights management information. The bill also features several provisions related to copyright term but notably does not touch the current general copyright term of life of the author plus an additional 50 years. There are several new terms included in the bill with extensions for anonymous works, performances in sound recordings, sound recordings, and cinematographic works. The bill expressly states that none of the extensions are retroactive which means that the works that are currently in the public domain will remain there even after the new terms are established.

Yet the big story is that Section 6 of the Copyright Act, which states that the general term of copyright is life of the author plus 50 years, remains unchanged despite a USMCA requirement of life plus 70 years. Why unchanged?

I am advised that the reason is that the Canadian government negotiated a 2 1/2 year transition period for the USMCA and it intends to use the time to consult with the public on the best way to meet the copyright term obligation. That holds the promise of the making the best of a bad situation given that few (other than the embarrassingly one-sided Heritage committee study) think that extending the term of copyright benefits Canadians.

For example, there has been some thought given to establishing a registration requirement for the additional 20 years. That approach would allow rights holders that want the extension to get it, while ensuring that many other works enter the public domain at the international standard of life plus 50 years. By providing for life plus 50 and the option for an additional 20 years, Canadian law would be consistent with Berne Convention formalities requirements and with its new trade treaty obligations. Copyright registration would not eliminate all the harm to the public domain, but it would mean that only those that desire the extension would take the positive steps to get it, thereby reducing the costs of the USMCA’s unnecessary copyright term extension.

The post Canada Introduces USMCA Implementation Bill…Without a General Copyright Term Extension Provision appeared first on Michael Geist.

No Mandated Netflix Cancon Payments: Shaw Argues Success Lies in More Regulatory Flexibility in BTLR Submission

Michael Geist Law RSS Feed - Wed, 2019/05/29 - 10:12

Yesterday’s post on the still-secret broadcast and telecommunications review submissions obtained under Access to Information focused on Bell, which proposed extensive new regulations for Netflix that would result in hundreds of millions in payments that could spark a trade battle with the United States. The major Canadian communications companies are not united on this issue, however.  While there are similarities on wireless (most oppose mandated MVNOs), the broadcast perspectives differ significantly. This post reveals some of the details in Shaw’s submission to the BTLR, also obtained under ATIP.

Shaw argues that broadcast distributors such as cable companies already contribute to Canadian content by investing in its distribution through its networks. It therefore recommends the removal of the mandated 5% contribution by BDUs and opposes the creation of a new ISP tax. Indeed, it identifies many negative effects of an ISP tax, including affordability, reduced network investment, and harm to innovation.

Interestingly, Shaw also rejects a mandated Netflix Cancon contribution tax:

Shaw submits that the imposition of legacy regulatory models onto OTT platforms would not be in the best interest of consumers or the overall Canadian broadcasting system. A regulatory framework that depends on foreign OTT services to achieve the cultural objectives of Canada’s domestic broadcasting system will likely lead to issues of enforcement as well as inconsistent and unsatisfactory results.

Instead, Shaw argues that the Broadcasting Act objectives are best achieved through a “more flexible, market-driven approach”. As for a Netflix contribution, Shaw argues it would be better to emphasize discoverability of Canadian content, a measure that could be imposed on all OTT providers – both Canadian and foreign – thereby avoiding potential violations of Canada’s trade agreement obligations. Shaw also supports the imposition of sales taxes on Netflix and the avoidance of new carriage fees for broadcast signals.

Shaw maintains that the Canadian market would be better served by opening up to foreign investment. It argues that for Canadian broadcasters and BDUs to compete, they need access to capital, expertise, and technology, all of which would be facilitated by access to foreign investment. Given the role that foreign providers (such as Netflix) already play in the creation of content in Canada, opening the market would help preserve the strength of the Canadian broadcasting system.

As for other issues, Shaw believes that net neutrality is already protected under Canadian law without the need for further provisions and that website blocking should be permitted through reform to the Copyright Act. While the Bell submission adopted an extreme self-interest approach, Shaw’s vision is consistent in favouring a lightweight regulatory model premised on more competition, better pricing, and a shift away from mandated payments.

The post No Mandated Netflix Cancon Payments: Shaw Argues Success Lies in More Regulatory Flexibility in BTLR Submission appeared first on Michael Geist.

Self-Serving in the Extreme: Bell’s Broadcast and Telecom Submission to the BTLR Revealed

Michael Geist Law RSS Feed - Tue, 2019/05/28 - 10:49

The government’s expert panel on broadcast and telecommunications law reform is expected to release its preliminary report on the results of its public consultation next month. The panel has remarkably kept the submissions to the consultation secret, rejecting an open and transparent policy making process that the government insists is essential to good policy development. I filed an Access to Information Act request for some of the more notable submissions (some have been made available and are posted online by the FRPC). An interim release of that request just arrived in my inbox and I’ll have a couple of posts on point over the next few days.

This post starts with the submission from Bell, which was released via ATIP and which I’ve posted for research and news reporting purposes. The running theme from Bell is a simple one: regulate others, but not us. For example, the Bell online video regulation proposal conveniently seeks to regulate Netflix, Amazon, and other large U.S. providers while largely avoiding regulation for Canadian-based services. It does so by limiting regulation to those Canadian services with $300 million or more in revenue from online video services (likely no one right now) vs. the same $300 million threshold or $1 billion in total global revenues for foreign operators (thereby capturing Netflix, Amazon, CBS, Disney, etc.). Bell acknowledges the difference, effectively arguing that Canadian policy should encourage Canadian market entry without regulation and that domestic market entrants have long been supporting the system.

As for the proposed regulation, Bell wants a mandated contribution of 20% of Canadian revenues to support Cancon. It argues that the same foreign companies that would be required to pay into the system would be ineligible to access the funding nor able to use their existing investments to off-set the mandated contributions. This is notable for several reasons. First, foreign sources are already outspending Canadian broadcasters such as Bell on priority programming such as English-language drama, yet Bell argues that spending is irrelevant. Moreover, while Canadian entities would be able to tap into the Canadian funding, companies such as Netflix would be required contribute hundreds of millions of dollars without being able to do the same.

According to Bell, the lack of access to funding for Canadian programming is irrelevant, since it claims foreign providers don’t want Canadian content. It argues:

In reality, it is pointless to expect foreign OTT providers to focus on qualified Canadian productions as they simply want content not that is uniquely Canadian but that is designed to reflect audiences in its largest markets and is attractive to all international markets in which they operate.

Why Canadian content can’t be both – of interest to Canadians and a global market – is not explained. Nor does Bell square its concern with the rising costs it faces to acquire foreign programming from the U.S., demonstrating telling Canadian stories is hardly a corporate priority.

The incredibly one-sided proposal would surely be subject to a trade challenge under the USMCA. While the trade deal features a carve out for the cultural sector, the U.S. would be entitled to retaliate against the measures with equivalent costs to Canadian firms. In other words, get ready for hundreds of millions in new tariffs against Canada if the Bell proposal were to be adopted.

Online video is not the only cash grab that Bell has in mind. After years of debate over television fees was put to rest in 2012, Bell brings back the fee-for-service issue, arguing for payments for local television signals. Payments for local television signals would presumably only exacerbate the cord cutting trends of recent years with increased cable fees for programming that is already being abandoned by many Canadians.

No Bell submission would be complete without a call for website blocking. Bell resurfaces its arguments for the FairPlay site blocking system (even including one of its CRTC submissions as an appendix). In addition to changes to support site blocking within the Telecommunications Act, Bell wants an expansive new criminal prohibition in the Broadcast Act that would make it a criminal offence to knowingly “operate, advertise, supply or sell or offer to sell access to a distribution undertaking that retransmits broadcasting without lawful authorization from a programming undertaking.” In other words, Bell is calling for widespread criminalization of anyone even tangentially associated with unauthorized online video streaming.

Bell also wants its privacy obligations under the Telecommunications Act eliminated. It argues that the Privacy Commissioner of Canada has applied a lower standard to companies such as Google, Facebook, Apple, and Amazon than it has to Canadian telecommunications companies. Bell’s claim rests on requirements that it obtain express consent for its consumer surveillance program (referred to as a relevant advertising program), whereas it argues that other companies do not face the same requirement. It describes this as an “Internet platform privacy gap” and it wants the same standard applied to all (how eliminating the CRTC’s role over privacy would achieve this is not explained).

While Bell is all-in on regulation for broadcast competitors, it adopts the reverse approach in telecom, where it urges the BTLR to lighten its regulatory burden. To support its position, Bell unsurprisingly spends considerable time trotting out largely discredited arguments about the competitiveness of the Canadian wireless market (“over the course of three decades, it has been repeatedly determined that the wireless market is competitive.”) There are the cherry-picked data points, but few answers for the consistent global comparisons that point to Canada as one of the world’s most expensive wireless markets.

Indeed, on the question of competition, Bell argues “there is consensus among the Commission, the Competition Bureau, and the Government in support of that [facilities-based competition] policy.” Obviously, the submission pre-dates more recent developments that suggest the consensus is shifting in the opposite direction with the government’s proposed policy direction and the CRTC’s new position on MVNO’s both pointing to support for a policy objective that supports all forms of competition.

Rather than regulation in support of greater competition, Bell provides the panel with a prescription for reduced or eliminated regulation wherever possible. In fact, even the provisions that support net neutrality (Bell otherwise ignores the issue) would be lightened with a reversal of where the onus lies on proving wrongdoing and a weakening of Section 36 to facilitate website blocking.

The net effect of the 167 page submission is self-serving in the extreme: higher wireless and entertainment costs for consumers, competitive advantages for Bell, the risk of a trade war with the United States, harms to net neutrality, and an extensive regulatory system aimed at Bell’s competitors. Even in an era where one expects companies to argue in their self-interest, the Bell submission is shocking in the risks it posses to virtually all stakeholders in the Canadian communications world.

The post Self-Serving in the Extreme: Bell’s Broadcast and Telecom Submission to the BTLR Revealed appeared first on Michael Geist.

The LawBytes Podcast, Episode 13: Digital Charter or Chart: A Conversation With Teresa Scassa on the Canada Digital Charter

Michael Geist Law RSS Feed - Mon, 2019/05/27 - 09:05

Years of public consultation on Canadian digital policy hit an important milestone last week as Innovation, Science and Economic Development Minister Navdeep Bains released the government’s Digital Charter. Canada’s Digital Charter touches on a wide range of issues, covering everything from universal Internet access to privacy law reform. To help sort through the digital charter and its implications, I’m joined on the podcast this week by Professor Teresa Scassa, a law professor at the University of Ottawa, where she holds the Canada Research Chair in Information Law and Policy.

The podcast can be downloaded here and is embedded below. The transcript is posted at the bottom of this post or can be accessed here. Subscribe to the podcast via Apple Podcast, Google Play, Spotify or the RSS feed. Updates on the podcast on Twitter at @Lawbytespod.

Episode Notes:

Canada’s Digital Charter
Canada’s Digital Charter Represents a Sea Change in Privacy Law, But Several Unaddressed Issues Remain

Credits:

The Canadian Press, Innovation Minister Navdeep Bains Introduces Digital Charter
CBC News, Security, Control Over Personal Data Outlined in Canada’s New Digital Charter
FactPointVideo, Trudeau Announces Digital Charter to Fight Fake News, Online Hate

Transcript:

LawBytes Podcast – Episode 13 | Convert audio-to-text with Sonix

Michael Geist:
This is LawBytes, a podcast with Michael Geist.

Navdeep Bains:
We can’t ignore some of these new complex challenges that have emerged. At the heart of these new challenges is the fundamental question of trust. How can Canadians believe in the good of this online world when they’re confronted with a video of 51 innocent people gunned down during prayer in Christchurch and that video goes viral. How can they trust their data will be used to improve their lives when it is used to bombard them with disinformation. Here’s the thing: innovation cannot happen at the expense of privacy and data and personal security. I’m happy today to present Canada’s new digital charter.

Michael Geist:
Years of public consultation on Canadian digital policy hit an important milestone last week as Innovation Science and Economic Development minister Navdeep Bains released the Government’s Digital charter. Touching on a wide range of issues, Canada’s digital charter features 10 guiding principles: universal access, safety and security, control and consent, transparency portability and interoperability, open and modern digital government, a level playing field, data and digital for good, strong democracy, freedom from hate and violent extremism, and finally strong enforcement and real accountability. To help sort through the digital charter and its implications, I’m joined on the podcast this week by Professor Teresa Scassa a friend and colleague at the University of Ottawa. Professor Scassa holds the Canada Research Chair in Information Law and Policy. She writes frequently on information and data issues at her Web site at teresascassa.ca, appears regularly in the media and before House of Commons committees and serves on several key advisory boards and panels including Waterfront Toronto’s Digital Strategy Advisory Panel and the newly created federal A.I. Advisory Council.

Michael Geist:
Teresa, welcome to the podcast.

Teresa Scassa:
Thank you for having me.

Michael Geist:
It’s great to have you. So we’re recording this at the end of a week in which the innovation science and economic development minister Navdeep Bains has been off selling the digital charter in Toronto and Montreal. It’s been in the news regularly and so I want to talk a bit about the charter and I guess consider whether or not Canadians ought to be buying what the Minister’s been selling. What do we start with a little bit of background though. What is the digital charter.

CBC News:
The Federal Government is launching a new digital charter to protect, they say, Canadians personal data. Ottawa is promising changes to federal privacy laws to give Canadians more control over their personal information when it’s collected by technology companies. The government laid out a series of principles today they say will guide changes to the Privacy Act. The changes will also include penalties and fines for tech and social media companies that breach the new privacy law. So does that mean the government will start fining Facebook right away. When can Canadians expect these new protections to kick in?

Teresa Scassa:
The digital charter is built around 10 principles that are intended to guide the government’s digital strategy going forward. So so they called it a digital charter. They’ve they’ve set out these principles and. And. Yeah. And that’s that’s essentially what it is. And the principles are are somewhat broad principles. But the I guess the issue you hear the hesitation my voice the issue I have with the digital charter is that I don’t like the word the use of the word charter in there because I would see it. I would call it a digital chart. It’s a roadmap right. It’s here are some principles that are guiding us as we develop policy. And that’s fine. And there are interesting principles and they will shape or guide policy but a charter is the charter is a document that confers rights and entitlements and often those are actionable rights. And so there are things in this digital charter that maybe should be rights but aren’t there just principles like Canadians should have universal access not Canadians have a right to access. Right. So so you know it may sound a little bit like quibbling but I think that if we’re serious about ff something like a charter articulating the basic rights that Canadians should have in a digital society. This isn’t the document. This is a roadmap to developing digital digital strategies digital policy. And it may be an interesting roadmap but it’s not a charter.

Michael Geist:
This is a really interesting perspective. So it’s a road map or a charter it sometimes has almost a checklist. Yeah kind of feel on a whole sort of issues including universal access and the privacy issues and open government and those sorts of things so given that it is not that charter in the sense that one might typically think of something conferring rights. I take it this is a bit more aspirational in terms of where were they where the government says they could be going as opposed to resulting in something immediate.

Navdeep Bains:
It’s going to be very difficult to pass any legislation at this point. What we’ve done is proposed policies and changes to the privacy legislation that we’d like to implement in a timely manner. Clearly there is very limited runway in the legislative agenda for this session. So the hope is for putting in our platform and also in the next mandate as well if we’re fortunate enough to earn the trust of Canadians.

Teresa Scassa:
It’s almost like a political platform. Given that an election is six months. It’s it’s basically saying this is this is what we’re thinking where we’d like to go. These are the you know the values that will underpin what we’re going to do in terms of digital strategy and so all of that’s well and good. And. you know and I think it’s it’s good to set those out so but that’s what it has the feel of. I mean there are things in there that that aren’t new. Again the concept of universal access how long have we’ve been talking about universal access in Canada. How long have we been talking about. Well you mentioned privacy but privacy isn’t actually one of the principles. Control or consent is a principle. Better enforcement of all rights not just the privacy rights is a principle but there isn’t actually a principle that says that talks about privacy as a as a right. It’s it’s about aspects of data protection essentially.

Michael Geist:
Oh that’s right. What do we actually go there and talk a bit about the privacy side which is which was certainly one of the aspects of the chart or charter that included a full background paper and the Minister has been talking quite a lot about it. So obviously got a fair amount of attention. Knowing the Privacy Commissioner of Canada was out speaking this week also had major privacy conference and was talking about the need for a rights based framework. Do you have the sense that the minister that the minister and the government are on the same page as where the privacy commissioner wants to go?

Teresa Scassa:
No no. I think that what we have in the document from ISED about reforming paper essentially is is a discussion of the reform of a data protection statute. It’s data protection reform it’s not a human rights based approach to privacy or to digital rights more generally it is. It is a set of reforms to data protection laws and that may sound like a subtle distinction but I do think I do think it’s it’s an interesting and important one. We don’t actually have a right to a broad right of privacy that’s contained in that in the Canadian Charter of Rights and Freedoms there’s a right to be free from unreasonable search and seizure so there’s a search and seizure related privacy right that comes up in a number of different contexts mostly related to law enforcement. There’s been some discussion around whether the right to life liberty and security the person has a privacy dimension but it’s not extensive. If there is one and so we don’t have sort of a broader right or a set of principles around privacy.

Teresa Scassa:
One of the things that I think is interesting and I and I find entirely absent from this and not just this but other kind of data protection oriented things is is this is the is any addressing of the issue of surveillance. Individuals to a completely unprecedented extent or being exposed to surveillance both by the private sector. We hear a lot about surveillance capitalism and surveillance in the context of smart cities but there is just a massive data collection which is a form of private sector surveillance. And the part that doesn’t ever get talked about a great deal is the extent to which government has back channels into all of that private sector data and can carry out various forms of surveillance using those back channels for access and I’m not saying they’re gonna illicit back channels but they can get you know judicial authority authorizations or warrants and there have been disputes in the past about whether they need warrants for access to some of that information. But there are routes by which government can access the massive amounts of data in the hands of the private sector and some of those channels are set up very explicitly in the data protection laws and these are the exceptions to the requirements for consent. And so you know I think this is a part of data protection how it gets ignored which is that these exceptions to consent expand and the channels and the routes are there and the amount of data that’s being collected by the private sector expand and we never really talk about what we need to do to what kind of frameworks we need and place what kind of additional protections we need in place to manage the significant changes in both the volume of data in the hands of the private sector and the interest in government and having access to it. And I do think that we need to be thinking about that.

Teresa Scassa:
So you know if you want to talk about our human rights based approach to to. Privacy legislation. I’d like to see a right to be free from unjustified surveillance. And then I’d like to see what that looks like in practical terms. So this is something I think that we don’t see in the digital charter and we don’t see it in this discussion about PIPEDA and it doesn’t get talked about a great deal but I do think it is a very significant issue and one that will I think have continue to have or may have greater ramifications for example when you get data.

Teresa Scassa:
When we get more standardized data for example open banking and standardized financial information it’s gonna be very tempting for governments to to. To analyze large volumes of data looking for red flags or looking for patterns in the way that they now get tower dump warrants for example and and look for things within the data that they collect. And again that’s data from the private sector. So that’s a little bit of a side issue it’s not in any of these documents but to me I think this is something that we don’t talk about enough and we don’t think about enough and it’s it’s the relationship between all of that private sector data and government and how we are going to manage that relationship in a way that that that that is in the public interest. But that also protects our rights.

Michael Geist:
That’s an interesting perspective and it strikes me that this document particularly the privacy background stuff not only does not address that issue but it’s focused primarily on private sector and presumably the minister would say well that’s where my constitutional responsibilities are but whether we’re talking about the political parties and the ongoing gap there or even the Privacy Act which they have also said that we’re prepared to take a look at after decades of really not doing very much the focal point in terms of saying we’re going to modernize these rules is almost entirely private sector focused without really looking internally at the government itself.

Teresa Scassa:
Yeah. And I do think that’s really I think that’s really important because the two are now very very closely linked and in so many different ways. And you and you can see the the interaction of public and private sector again in things like Sidewalk Toronto where there’s you know there’s an increasing overlap between the things that government do and the things that the private sector do and the things that they do together and and data caught in between and so I think this is becoming more and more of a challenging issue. And so it’s true. You mentioned political parties I mean there’s that there’s a little bit in the statement about the or the document about the reform of PIPEDA that talks about how it might be necessary to look at whether the application of PIPEDA needs to be changed because there are more and more non-profit organizations that are engaged in data collection. And I was reading that and I thought this would be a place to mention political parties but they’re not there, whether they’re nonprofit organs they fall under that umbrella of non-profit organizations that we need to think about or look about. Look look at whether it’s meant to fall under that I don’t know but it’s not there in any explicit term.

Michael Geist:
And that’s you know it’s been difficult to get governments of all political stripes to focus internally once they get into office. It seems like making changes whether it’s on the access information side or on the privacy side is far more challenging. And I suppose it’s easier to get other people to to measure up and even that’s been difficult in terms of PIPEDA reform. When I think of the early stages of PIPEDA it talked about trying to strike a balance. Business considerations and the like and that was the way we understood business and e-commerce back in the 1990s and we clearly have some different conceptions and different models today. Can you talk a bit about some of the kinds of things the government is talking about from an updating perspective and perhaps are welcome but that are open and perhaps even long overdue in terms of some of the changes they’re trying to make.

Teresa Scassa:
Yeah. And I think the government has taken a serious look at at some of the challenges the need for modernization there are things in here that look a little bit like some of the things that are in the the famous GDPR that everybody’s talking about. And so for example there are some of the interesting things I mean there is there’s talk about things like data portability although it’s referred to as data mobility and that’s the idea of it’s partly data it’s data protection in the sense of giving individuals more control over their data. But it also I think is linked to both consumer protection and competition law. So it’s one of those things that’s a little bit broader in terms of its scope and the idea is that individuals would be able to take their data from one company and bring it to a new company entering the market that that will then be able to with that data be able to offer them comparable a comparable level of customized service for example. And so so there’s some discussion of data mobility it’s interesting it’s a little bit different from the GDPR in that they’re not talking about data in machine readable format but talking about data in standardized format which is a little bit different and maybe a little bit more case by case industry by industry. And so. So that’s interesting. So data mobility is one aspect there’s some discussion of.

Teresa Scassa:
There’s a little bit of discussion about the right to be forgotten but they’re not going there fully because there’s a court case before the Federal Court of Canada but. But it’s. That this might be something that reputational rights and linked to that the right to have information deleted for individuals asked that their information be deleted which is a dimension of that. There’s some discussion about algorithmic. Well I was gonna say algorithmic transparency but perhaps a right to explanation of automated decision making. And so again that’s something I think that people are concerned about and interested in. There’s also discussion about making changes to the rules around consent in a variety of different ways to try and make individual control over personal data more manageable so both reducing the amount of information that’s pushed at consumers and making it more accessible and easy to understand but also providing other other means by which individuals can manage their personal information and there’s some you know there’s some interesting stuff also about relying on standards and data trusts and other sorts of mechanisms to allow for management of personal information. So there’s quite a lot of stuff in there and I think it’s all thoughtful and these are you know these are directions that we need to be thinking about in terms of data protection. But that’s a lot. There’s a lot.

Michael Geist:
There is, I mean a lot of this really would would significantly change some of the approaches that we’ve had in the past and some of some of the kinds of things around algorithms and data mobility or portability feel pretty responsive to both open banking or some of the emerging business models that are out there. The changes to consent of caught some people’s attention and not in a good way made people think consent is the bedrock of what privacy laws are supposed to look like and this one seems to suggest that at least the government here is suggesting and consent isn’t always all it’s cracked up to be. You’re always looking for consent in every instance and a lot of people are effectively consenting to things and have no real idea what they’re consenting to. What’s your thoughts on on shifting towards more transparency and better ways of managing one’s data without necessarily saying that it’s got to be consent in every situation.

Michael Geist:
I mean frankly I think consent is broken the way it’s currently dealt with under in practice and under the legislation. I mean nobody can manage. Nobody has the time or the energy to manage information. And you know and in fact so many services are tied to consent. Right. You can’t proceed to get the service unless you agree to the terms and conditions and the privacy policy so that it’s not even a free choice if you actually you need to do something. You need to agree to the form it’s not like you get to negotiate it. So consent with respect to what’s happening to personal information I think becomes really quite meaningless in those contacts. So there’s. something in there that talks about taking consent out of contracts for the services which is interesting so separating the agreement to the service and the agreement to privacy that’s that’s an interesting development. And so I don’t see this as being negative with respect to consent if it’s not working right now and if people are consenting left and right as you say to anything just to get access to the service or just because there’s simply too much of a burden to manage all of this and frankly then you have to read the privacy policies and understand them and it’s that’s you know that’s not an easy thing to do. So I think that finding ways to make consent more manageable and to reduce the burden on individuals I think is important.

Michael Geist:
And it’s interesting I think we’re gonna end up with quite a battle there certainly from some who say you can’t you simply can’t abandon that model although I’m inclined to agree that too often the consent models feel completely illusory.

Teresa Scassa:
Yeah.

Michael Geist:
You’re consenting as a matter of course without reading it’s certainly not an informed consent. And we’ve seen that play out a number of times. Say even with the anti spam legislation where suddenly people were inundated with messages from organizations where they were purported to obtain some form of consent that was consistent with where the law was at. And it turned out that most people weren’t even aware that someone had ever thought that they’d given it that kind of consent. So once people were actually made aware of it. So hold on a second. This might try to find new mechanisms to ensure that people’s perspectives or views are better reflected in terms of how their information is managed which perhaps holds some promise.

Teresa Scassa:
It does hold some promise and there’s there’s discussion in the document about it increase expanding the areas for example where fines can be levied so on the enforcement side and consent is specifically mentioned for one of those so if if consent is obtained. To the or if an individual is sharing information but doesn’t consent to certain uses and the information is used for those purposes anyway or disclosed it without the consent then there may actually be the potential to to address that with fines which would certainly strengthen them which would strengthen the consent that’s being given because as you say right now you know whether what happens. I mean there’s two things. One is we may be consenting the vision of what we’re consenting to may be quite different from the reality of what we’ve consented to and that’s one problem. So that you actually have technically agreed to a whole range of disclosures that you didn’t mean to agree to. But there’s also the situation where you know you go in and you actually take the time to fix your privacy default settings and do all of this and then you find out after the fact that the information was used for purposes that you didn’t agree to. And there’s not much recourse except right now a complaint to the Privacy Commissioner which will lead to a series of findings that say that shouldn’t have happened.

Michael Geist:
Right. I’m glad you raised the issue of enforcement and would feel sometimes like the futility of filing complaints when all you’re left with is well-founded finding and starting from scratch at the federal court if you want something more. The government has emphasized the enforcement.

CBC News:
How will what you’re proposing be enforced. What kind of penalties will your government establish.

Navdeep Bains:
That was a key part of the changes that I talked about today. It was really about strong enforcement so significant and meaningful penalties maybe a percentage of revenue and we’re gonna be looking at other jurisdictions as well. We’re also going to be looking at how two companies even collect data or revenue and if they do not follow the privacy laws in this country we’re going to make it difficult for them not only to collect the revenue but collect data as well and this sends a very clear signal signal that enforcement is very important part of the changes that were proposing.

Michael Geist:
It seems to me that part of that may be driven by the news cycle and the recent Cambridge Analytica Facebook set of findings from the B.C. and Federal Privacy Commissioner in which Facebook response to those findings was well thanks but we’re not really that interested. And so the government now says we’re talking about real enforcement in fact I think I’ve heard Navdeep Bains talk about potentially global revenues and sort of modelling on the European approach and even talked about 5 percent I think in one interview which would suggest even higher than what we see out of Europe. What’s your what’s your view generally on our ability to get large global platforms to pay attention to Canadian privacy law and is the lack of enforcement one of the challenge room the real challenges we faced.

Teresa Scassa:
Yeah I think lack of enforcement has generally has been a challenge across the board not just with large platforms but but right across the board and in fact you know it may be even more acute with you know medium to smaller businesses in the sense that a lot of the large platforms are now paying attention to the GDPR and GDPR compliance and are at not just platforms but any large company in Canada that does business across borders is going to be you know raising their standards to the most stringent standards which are currently GDPR. And so we’ll probably benefit indirectly from from that. So I do think. But I do think that having stricter stronger enforcement measures not only will encourage greater compliance with the legislation because frankly if there isn’t really a consequence to not complying then why would you go to the expense of complying. And there is an expense there. So I think that that should make that should make a difference and I think it also may help with a general sense of futility and disempowerment among the broader population when it comes to when it comes to privacy the sense that you know people want if something goes wrong people want and they have a statute that says this is how it’s supposed to be. You know if nothing happens if there are no consequences then that’s actually I think extremely disheartening and discouraging and this document talks about trust and the importance of building trust and this idea that Canadians are going to need to be able to trust when they share these enormous quantities of personal information with companies that that that it is being dealt with appropriately so I do think the enforcement piece is appropriate there how much of a difference it will actually make people know that Facebook and other large companies are being fined left and right in Europe and and in the United States so we’ll see how much impact that has on changing things I think it will have. I think it will slowly have an impact.

Teresa Scassa:
That’s an excellent point. It’s really this notion between the large global platforms and the SMEs. I was reading I think was just this morning a piece in TheLogic, a digital publication focusing on the innovation economy in Canada, that was reflecting on the collision conference that took place in Toronto and they had asked a lot of CEOs and others about the charter and specifically about the privacy reforms and the response was actually exactly what you just raised. Those that are playing in a global environment said we’re already focused on GDPR like requirements and those enforcement measures. And so as long as the Canadian rules are kind of sufficiently similar or at least recognizable based on the kinds of obligations we face globally this isn’t anything particularly new. But some of the SMEs that pay far less attention potentially to some of these rules. This these may be game changers in terms of the kinds of things they’re required to do.

Teresa Scassa:
Yeah that’s right. And you know it’s always been whenever PIPEDA reform has come up in the past and it’s come up so many times. It’s always been this idea that it was going to have too much of a negative effect on business. And I think SMEs were a big part of that that it that it was going to have this and that it was simply going to be too costly and was going to harm business because the cost of compliance would not be feasible. Now I think the cost of non-compliance is going up. We’re seeing more and more class action lawsuits for example in Canada a really rapidly growing number of class action lawsuits in Canada over data breaches and other mishandling of personal information. So you know I think that yes there are the costs of non-compliance are there and are growing not just. It’s not just all about PIPEDA. It’s what’s also happening in other contexts too.

Michael Geist:
I think that’s right. One of the other things that’s happening right now of course isn’t just the privacy side and one of things that was notable I think about the way even this charter was launched was prime minister started talking about it even before Navdeep Bains did and his point of emphasis wasn’t on the privacy side to a significant extent at all it was more focused on dealing with concerns surrounding hate online and extremism.

Justin Trudeau:
Here’s the reality. People are losing trust in digital institutions for a whole host of reasons. They’re anxious about the future of tech and the future of data from emotional contagion experiments to major privacy breaches. These concerns are absolutely valid.

Michael Geist:
We’ve seen a big shift in terms of the government talking points on this and clearly the Prime Minister’s interests on this. Can you talk a bit about what the charter has to say about regulating social media companies or finding ways to deal with the harms online in a way that we at least up until recently hadn’t seen our government talking about.

Teresa Scassa:
Yeah and it’s interesting that this has become you know this. This has also captured so much attention and you know I find it interesting also that the focus is on hate and extremism and I think you know those are important things to be addressing. So I don’t mean to diminish that at all. There’s also the whole disinformation and other sorts of toxic behaviours online. There’s those raised some really big challenges and they raise challenges I think that are going to you know bring us sharply up against freedom of expression values on the one hand and on the other hand they’re also going to raise questions about how we’re actually going to do this. And you see this a little bit in the right to be forgotten. Because it’s one thing to talk about a right to be forgotten in the privacy context and then when you’re going to implement it. I mean there’s a whole you. There’s you almost have, you have to turn to the platforms and it’ll be the same thing with dealing with hate and extremism and misinformation is there is going to have to be some sort of relationship with the platforms in order to deal with that or to manage it. And so I think that it’s going to be interesting to see how that that’s not going to be easy.

Michael Geist:
No it’s not. We’ve seen some jurisdictions that may not have charter like rules take pretty aggressive positions in terms of the kinds of expectations they have for some of these platforms or intermediaries. Let’s take action against this kind of content. It was striking that one country that sort of stayed to the sidelines a little bit in the United States at least with the recent efforts post Christchurch. Part of that may be the companies are based there but part of it quite clearly is that they’ve got First Amendment rights there that may find themselves quickly conflicting with some of the expectations that we see bubbling up. I think you’re right to raise the charter. Canada, at least this Government, has moved itself more and more towards the more aggressive approach, at least in terms of some of the rhetoric but we still do have a Charter of Rights and Freedoms here that may significantly constrain our ability to at least mandate certain kinds of actions.

Teresa Scassa:
Yeah. And I think I mean I think I do think Canada has been maybe better at finding a balance and more open to finding a balance and I think that the the way in which our charter is drafted for example it does explicitly contain equality rights provisions and you know I think that the charter itself demands doesn’t put one right above another and demands a balance as well. So I do think that that may provide a different constitutional context but it’s it will be challenging and and it’ll be particularly challenging because it’s I think it’s going to be hard especially when you’re talking about the major platforms it’s going to be hard to do things on a piecemeal country specific basis. The global issues are going to be extremely complex because the message. You know it’s one thing if the message is coming from Canada and you know that that makes it a lot easier than if the message is coming from another country. So you know I think the global dimensions are going to make this incredibly challenging.

Michael Geist:
Yeah I mean we think the Equustek case of course in Canada raised this issue of Canadian court orders applying outside of our jurisdiction. And you quickly devolved to a place where if every country gets to say these are the standards that we want to see applied to access to certain kinds of content and our expectation is full scale moderation by the large platforms you’re throwing out or losing a whole lot of freedom of expression along the way and media and finding places that may not have the same kind of cultural considerations or legal rules or safeguards in place started doing decisions for countries to do.

Teresa Scassa:
Yeah. And then of course who are who are the the very low paid moderate haters who are reviewing the content and where are they located and you know what values influenced them and what kind of conditions are they working in and you know in some of that of course may shift to AI. But then you’ve got all of the you know. So this is this. This will be this is not gonna be solved overnight. And it’s not gonna be solved without controversy controversy either. But but but there you know there are really important issues and I think they’re becoming even more critical as we move forward. But yeah that that’s going to be tough.

Michael Geist:
It is. I mean it feels like that’s the case for a lot of these issues here. I mean I come back to this description of here’s a chart where there was a lot of different things raised. There isn’t an immediacy to make changes in some instances in part because as you’ve mentioned we’re in an election year and so the clock has effectively run out on full legislative change and even something beyond that is less than legislation is still difficult. I’d be remiss before we close if I didn’t pick up on you just had a little brief reference to A.I. and that’s been one of the focal points in this as well and certainly of this government, which has made significant investments in A.I. and talked more and more about A.I. policy. You’ve been named as a member of the new A.I. Advisory Council one of our colleagues Ian Kerr another member of that council. Any thoughts on the role either the council or perhaps more broadly if it’s still early days there that Canada can play when it comes to some of these A.I. policies that in some ways raise some of the same kinds of global challenges.

Teresa Scassa:
Yeah and I think it is early days so so there’s not a lot that I could say about the council itself. But I do think that there there are really two pieces one is the role that Canada can play internationally in influencing and in helping to develop approaches and ethical approaches and ethical guidelines and standards for artificial intelligence and sort of more global norms around the circumstances in which AI should or should not be used. And so there’s that international but there’s a domestic role as well. And I think that you know for example the government recently put in place its directive on automated decision making in the federal government which is a really interesting document. And there’s a great deal of thought went into it. And it’s meant to do to to guide and to shape how automated decision making will take place in government and we’re kidding we’re kidding ourselves if we’re if we think that that’s not already happening and that it’s not going to continue to happen and grow on a on a more significant scale. And that’s just the federal government we’ve got all of our provincial governments who are also you know looking at automated decision making and variety of forms so it’s here, it’s affecting our lives. There’s the whole private sector piece as well. So I know that the AI advisory council of course is not going to touch on what provincial governments do or any of that sort of thing. But but I think there is a tremendous amount of change that is happening and impacts that we are going to experience as a society. And and we need to be thinking about how we’re how we’re going to manage those changes how we’re going to to develop equitable fair processes and protocols whether the decision making is coming from government or from the private sector it’s going to have significant impacts in our lives. So yeah there’s a there’s no shortage of work to do on the side as well.

Michael Geist:
No there’s not. Well you know I think I speak for a lot of people in a way grateful that you’re on that council and grateful for the the work you’ve been doing on these challenges whether it’s through your blog and your research and the writing that you’ve done. Thanks so much for joining us on the panel.

Teresa Scassa:
Thank you.

Michael Geist:
That’s the Law Bytes podcast for this week. If you have comments suggestions or other feedback, write to lawbytes.com. That’s lawbytes at pobox.com. Follow the podcast on Twitter at @lawbytespod or Michael Geist at @mgeist. You can download the latest episodes from my Web site at Michaelgeist.ca or subscribe via RSS, at Apple podcast, Google, or Spotify. The LawBytes Podcast is produced by Gerardo LeBron Laboy. Music by the Laboy brothers: Gerardo and Jose LeBron Laboy. Credit information for the clips featured in this podcast can be found in the show notes for this episode at Michaelgeist.ca. I’m Michael Geist. Thanks for listening and see you next time.

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The post The LawBytes Podcast, Episode 13: Digital Charter or Chart: A Conversation With Teresa Scassa on the Canada Digital Charter appeared first on Michael Geist.

The Foundation of Canada’s Digital Charter: Privacy Law Reform Focused on a Data-Driven Economy

Michael Geist Law RSS Feed - Wed, 2019/05/22 - 11:49

Prime Minister Justin Trudeau announced plans last week for a new Canadian digital charter featuring penalties for social media companies that fail to combat online extremism. While the just-released proposed charter does indeed envision increased regulation of the tech sector, my Globe and Mail op-ed argues its foundation is not content-regulation but rather stronger rules on how companies use data. Leading the way is a promised overhaul of Canadian privacy law to ensure it is better suited to the challenges posed by a data-driven economy.

The proposed privacy law reforms seek to strike the balance between supporting an innovation-led economic agenda heavily reliant on access to data with mounting public concern over the use of that data without appropriate safeguards or consent. If enacted – the digital charter includes a detailed background paper on privacy law reforms that suggests legislative action will only come after the fall election – the changes would constitute the most significant privacy law amendments in decades.

After a national data consultation and several committee hearings, Innovation, Science and Economic Development Minister Navdeep Bains now acknowledges the obvious: Canadian privacy law badly needs a re-write. In fact, the privacy background paper notes that current law is a legislative oddity given that the core rules are buried in an attached schedule using non-legal language. The approach may have made sense when the law was first introduced in 1998, but more than 20 years later, the government says it intends to embark on a full redrafting of the law.

As for the content of the new law, several proposals stand out, notably the approach to data collection and analysis. For example, the government would strengthen existing consent mechanisms by requiring increased transparency on how the information will be used and whether third parties will have access to it. Moreover, the government promises to stop companies from bundling consent into contracts, thereby enhancing consumer choice.

Given the widespread business use of consumer data, the government proposes to facilitate common uses for standard commercial activities by removing some consent requirements or promoting the de-identification of data. Yet it also envisions new penalties for companies that attempt to re-identify de-identified data. In other words, the law would facilitate the use of anonymized data but would also punish organizations that try to link the data to an identifiable person.

The government promises another major regulatory safeguard for big data analysis. With the public often concerned about how their information is used or abused, the law would feature new algorithmic transparency requirements mandating that companies inform individuals about the use of automated decision-making and the factors used to reach the decision. The law would stop short of requiring the disclosure of confidential commercial information, but revealing how automated decisions are reached would be a game-changer in Canadian data law.

Supporting these changes would be increased control by users over their data, the use of data trusts, and enhanced enforcement powers for the Privacy Commissioner of Canada. Canadians would be granted a new data portability right that would allow for the transfer of personal information in standard data formats. Data portability is widely viewed as a key component in open banking initiatives, since consumers need the power to easily move their financial data between providers.

The potential for data trusts, which contemplates using trusted third parties to manage access to sensitive data for research and development purposes, is viewed as another mechanism of striking a balance between innovation and appropriate data use.

Yet data trusts are only effective if enforceable and establishing limits on data use won’t matter if the limits are ignored without fear of penalty. That leads to the last major proposed change: new enforcement tools including order making power for the Privacy Commissioner of Canada alongside substantially increased financial penalties for legal violations.

The proposed reforms represent a sea-change in Canadian privacy law, but there remain several unaddressed issues. The government is deferring the question of a right to be forgotten (often referred to as a right-to-index), noting the issue is currently before the courts. It also limits the proposed reforms to private sector privacy rules, leaving the rules that govern public sector data use untouched for the moment.

Perhaps the biggest challenge is that both the privacy reforms and the broader digital charter have little prospect of becoming law before the federal election scheduled for the fall. Rather, their release suggests that the government views digital governance and privacy law as potential election issues. Mr. Bains and the Liberal government are first out of the gate, but with an outdated law and mounting fears about the emerging risks of a data-driven economy, they are unlikely to be the last.

The post The Foundation of Canada’s Digital Charter: Privacy Law Reform Focused on a Data-Driven Economy appeared first on Michael Geist.

The LawBytes Podcast, Episode 12: The Past, Present and Future of Free and Open Access to Law

Michael Geist Law RSS Feed - Tue, 2019/05/21 - 09:02

The free and open access to law movement is devoted to providing free and open online access to legal information. This includes case law, legislation, treaties, law reform proposals and legal scholarship. This week’s Lawbytes podcast highlights perspectives on free and open access to law from Australia and Canada. During a recent trip to Australia, I spoke with Professor Graham Greenleaf, one of the pioneers of the movement, who co-founded AustLII, the Australasian Legal Information Institute. Following in the footsteps of the Legal Information Institute at Cornell University, AustLII helped reshape legal publishing in Australia and played a pivotal role in bringing other countries’ legal materials online. The episode continues with a conversation with Xavier Beauchamp-Tremblay, the current CEO of CanLII, the Canadian Legal Information Institute, about the Canadian past, present and future of free and open access to law.

The podcast can be downloaded here and is embedded below. Subscribe to the podcast via Apple Podcast, Google Play, Spotify or the RSS feed. Updates on the podcast on Twitter at @Lawbytespod.

The post The LawBytes Podcast, Episode 12: The Past, Present and Future of Free and Open Access to Law appeared first on Michael Geist.

The “Bulte Report” Redux: Canadian Heritage Committee Releases Embarrassingly One-Sided Remuneration Models Study

Michael Geist Law RSS Feed - Wed, 2019/05/15 - 16:57

The Canadian government announced its plans for a copyright review in December 2017, tasking the Standing Committee on Industry, Science and Technology with the review. That report has been in the drafting stage for several months and is expected before the summer. In an effort to dampen concerns that Canadian Heritage would play a diminished role in the review, the responsible ministers asked the Industry committee to ask the Heritage committee to conduct a review on remuneration models for artists and creative industries. The formal request asked the Standing Committee on Canadian Heritage to “call upon the expertise of a broad range of stakeholders impacted by copyright to ensure a holistic understanding of the issues at play.”

Rather than providing the recommendations directly to the Industry committee as requested, the Heritage committee and chair Julie Dabrusin, a Liberal MP, chose instead to release its full report today. The report, which utterly failed to comply with the request to call on a broad range of stakeholders, is the most one-sided Canadian copyright report issued in the past 15 years, largely mirroring the approach of the discredited 2004 Bulte report that was subsequently rejected by the government.

Representing little more than stenography of lobbying positions from Canadian cultural groups, the report simply adopts as recommendations a wide range of contentious proposals: copyright term extension, restricted fair dealing, increased damages, as well as several new rights and payments. There is no attempt to engage with a broad range of stakeholders, much less grapple with contrary evidence or positions.

For example, on the issue of educational issues, the report adopts the recommendations of the publishing industries, referencing contrary positions only as an afterthought (I am referenced based on my submission). The committee did not hear from many alternative perspectives, but where they did – either in person or via a submission – most are ignored. Professors Jeremy de Beer, Ariel Katz, Nick Mount, Meera Nair along with lawyer Howard Knopf and author Cory Doctorow all contributed to the process, but garnered no mention in the report other than being listed as participants.

The issue of copyright term extension provides a good illustration of the committee’s one-sided approach. By any reasonable measure, the issue of extending the term of copyright from life of the author plus 50 years to life plus 70 years is controversial. Canada suspended the extension in the revamped TPP and resisted term extension for years given ample evidence that it does not lead to new creativity but would harm access. Yet the committee recommends term extension, admitting:

No witnesses expressed outright opposition to extending of the copyright term from 50 to 70 years after death.

Any report that failed to include any witnesses opposing term extension has not met with a broad range of stakeholders. In fact, the committee makes no mention of the word “balance”, only citing the term in quotes from two witnesses. The report will be trumpeted by some rights holders, but the supposed intended audience – the Industry committee conducting the copyright review – should reject it as unhelpful, one-sided, and inconsistent with its instructions.

The post The “Bulte Report” Redux: Canadian Heritage Committee Releases Embarrassingly One-Sided Remuneration Models Study appeared first on Michael Geist.

The LawBytes Podcast, Episode 11: Reinterpreting Canadian Privacy Law – David Fraser On Cross-Border Data Transfers, the Right to De-Index, and the Facebook Investigation

Michael Geist Law RSS Feed - Mon, 2019/05/13 - 09:05

Daniel Therrien, the Privacy Commissioner in Canada, is in the courts battling Google over a right to de-index. He’s calling for order making after Facebook declined to abide by his recommendations. And he’s embarked on a dramatic re-interpretation of the law premised on incorporating new consent requirements into cross-border data transfers. David Fraser, one of Canada’s leading privacy experts, joins the podcast to provide an update on the recent Canadian privacy law developments and their implications.

The podcast can be downloaded here and is embedded below. The transcript is posted at the bottom of this post or can be accessed here. Subscribe to the podcast via Apple Podcast, Google Play, Spotify or the RSS feed. Updates on the podcast on Twitter at @Lawbytespod.

Credits:

CBC, Privacy Commissioners Say Canada Has a Lot of Catching Up To Do
Office of the Privacy Commissioner of Canada, PIPEDA and Your Business
CNBC, Everything You Need to Know About a New EU Data Law That Could Shake Up Big US Tech
CTV News
CBC News, Facebook Broke Privacy Laws, Watchdogs Report

Transcript:

LawBytes Podcast – Episode 11 | Convert audio-to-text with Sonix

Michael Geist:
This is LawBytes, a podcast with Michael Geist

Michael McEvoy:
Canada is far far behind I think many jurisdictions. Europe certainly the United States doesn’t have comprehensive privacy legislation by any means but through the Federal Trade Commission there is some element of regulation of privacy and obviously we’ve seen that with the latest investigation of Facebook. Canada has a lot of catching up to do in this regard both at a federal and provincial level.

Michael Geist:
There’s a lot happening in the Canadian privacy world. Daniel Therrien, the Privacy Commissioner of Canada, is in the courts battling Google over a right to de-index. He’s calling for order making power after Facebook declined to abide by his recommendations. And he’s embarked on a dramatic reinterpretation of the law premised on incorporating new consent requirements into cross-border data transfers. Underlying it all is a Privacy Commissioner of Canada who is seemingly frustrated with the law he’s been given to enforce. After years of calling for change he’s taking matters into his own hands with what feels like statutory amendments without actual amendments. Here to provide an update on the recent developments and their implications is David Fraser, one of Canada’s leading privacy experts, a partner at the law firm McInnes Cooper, and an active blogger at privacylawyer.ca.

Michael Geist:
David thanks so much for joining me on the podcast.

David Fraser:
My pleasure. Thank you.

Michael Geist:
So there is as I guess is always the case a lot happening in the Canadian privacy world but it’s really feels like underlying it quite a bit of it is a Privacy Commissioner of Canada who’s pretty frustrated with the law that he’s been given to enforce. And after years of calling for reform with limited success there’s the sense that he’s taking matters into his own hands almost by reinterpreting some of the law without actual statutory amendments. There’s there’s a number of examples but the one that is certainly quite a lot of people’s attention within the privacy world has to do with cross-border data transfers. So why don’t we start there. Perhaps you could can explain what a cross-border border data transfer is and why these issues really matter.

David Fraser:
Yeah. Certainly they happen quite often. That’s just the reality of the way that the world works right now particularly where it’s so mediated by technology. Probably the the one that people are most familiar with is you’re a Canadian. And you’re using a U.S. service provider. It could be Facebook it could be Google or it could be Amazon or whoever. And the data associated with whatever that activity is is going to be going to the U.S. to be processed or it ends up stored in a U.S. data center. And there’s also many examples where Canadian companies take advantage of cloud technology or efficiencies of scale where data is stored elsewhere. And then there’s also the much more traditional notion of let’s say you’re Air Canada and you’re flying a passenger to Paris you’re obviously going to have to move that passenger’s information to Paris if they want to check in at the airport to come back. So this sort of thing has happened for a very long time and happens quite regularly. And so it’s not an unusual occurrence and it’s just but it’s certainly it’s increasing particularly as so much of the data processing and data storage capacity in the world is outside of Canada.

Michael Geist:
Ok so we’re talking it sounds like even just from that brief description this is touching on everybody’s lives today from the kind of communication services they use to their banking to travel to just such a wide range of activity sometimes for the purposes as you suggest to store the data or to process it sometimes because the transactions are activities themselves are cross-border in nature. So I suppose the starting point from a legal perspective is how has Canadian privacy law traditionally treated these issues.

OPC:
What exactly does accountability mean for my business. Accountability means that you need to make sure someone in your organization is responsible for protecting the personal information you collect and that you give that person the tools and support to do it right.

David Fraser:
Since PIPEDA first came into effect in 2001 it hasn’t made any explicit distinction between activities that are taking place in Canada and activities are taking place elsewhere. And I guess one can assume that that was probably an explicit choice because at the time that PIPEDA was being drafted they already had the example of the European Data Protection Directive which preceded the GDPR which did regulate cross-border data transfers that did require if he were a data controller in the European Union and we wanted to transfer data outside of the European Union for somebody else to process on their behalf or if we were doing it on your own it had to go to a jurisdiction that had adequate privacy protection or there were other mechanisms that they could do that. So there is an explicit regulatory scheme in Europe related to cross-border data transfers. And the drafters of PIPEDA I assume expressly decided not to do that but focused on the first principle of the Canadian Standards Association Model Code for the protection of personal information which is entitled accountability, which requires any organization that is the primary custodian of that information and most often the organization that collected it in the first place from the consumer from the employee if they’re going to transfer information to anybody else to process regardless of where that takes place. They have to make sure that their service provider implements adequate protections for that information essentially requiring them to treat it as though they would treat it themselves subject to to our laws.

David Fraser:
And I’ve often taken a look at that and seen it as when it comes to the cross-border transfer, we need to make sure that your contract that you have with your service provider is going to be enforceable which requires taking a look at the legal system and rule of law in that other jurisdiction and a risk analysis related to that. And I think that’s the that’s the general consensus among practitioners of privacy law since 2001. Then we had guidance from Jennifer Stoddart the privacy commissioner at the time in 2009 related to cross-border data transfers which essentially made that the policy of the the Privacy Commissioner of Canada and did bring to the fore a notion that in their view their consumers should be given notice of this fact and usually that would be done in their privacy policies. So if you wanted to know where the your service provider or where the company was going to be processing information you’d be able to find it in that privacy policy as part of the openness principles. They’re kind of working together off the accountability principle and the openness principle that kind of clears the way towards doing that.

Michael Geist:
There’s a lot there and I just want to in a sense back up a little bit and unpack some of those pieces and so. So what I’m hearing you saying is that back when the private sector privacy law, PIPEDA, as you said here in Canada was being drafted there were a number of different policy options presumably available to Canada. They could have adopted the European style approach that as you mentioned essentially establishes some limitations on transfers across borders to ensure that it goes to jurisdictions that have laws that are viewed as adequate.

CNBC:
GDPR stands for the General Data Protection Regulation. If it sounds complicated. Well it is. It’s a set of sweeping data privacy rules going into effect across Europe and it applies to any company in the world with customers in the EU.

Michael Geist:
We’ve got a number of options for the future for the moment we meet that adequacy standard and that presumably could have been a model that we might have adopted. But as you suggest that’s not the one we adopted. We instead use this accountability principle and as you mentioned it effectively requires that an organization collecting the data is accountable for it no matter where it goes. So I I trust that that means that once your bank or your airline or your social media platform whoever has collected that personal information as long as they have appropriate consent it’s up to them to decide where it gets stored, where it gets processed, the Canadian law doesn’t really preclude moving it around to different jurisdictions around the world.

David Fraser:
That’s right and the organization that collected it in the first place which would be subject to Canadian privacy laws no doubt is the one that’s on the hook if anything happens to it even if it’s the subcontractors fault for example. And so I think that the incentives are built in there that to make sure that those protections are appropriate in place appropriately in place and would be primarily policed by the organization that collected the information in the first place.

Michael Geist:
Right. So they’re on the hook for this. Do they primarily achieve that today by way of contract which you mentioned that’s part of what you do. Is there an expectation though that they go beyond that many listeners will be familiar with all kinds of contracts and nobody really takes the time to read and there’s always questions about enforceability. Is simply papering this deal to say I’m requiring you service provider in another country to meet certain standards good enough or do Canadian privacy laws or at least the Privacy Commissioner’s Office under some of the guidance that you referenced expect something more.

David Fraser:
Well I would think it would be circumstance specific but certainly you could not just paper something and hand it over to a service provider who you know is not going to live up to those live up to those obligations and certainly it would be risky to do that because the first organization continues to be accountable for what happens to it. So if their service provider mistreats the information, misuses it, or even uses it for their own purposes because that takes it from being a transfer to an actual disclosure then they’re going to be on the hook for that but we don’t have our principles based legislation doesn’t put in place for example specific auditing requirements but that certainly has been a trend.

David Fraser:
Now one thing that’s that’s been interesting because GDPR and actually the Data Protection Directive before it did require these sorts of contracts to be in place between what is called in Europe controllers and processors. There has become a real consensus built up in terms of what these agreements should look like and what the auditing mechanism should be should be within them. But certainly it’s one of the things about again principles based legislation is the sensitivity of the information is probably going to be taken into account and the greater the risk related to the processing, the greater diligence. I think one would have to do in order to make sure that the service provider is capable of performing these and to make sure that they are in fact doing these things.

Michael Geist:
So there’s there’s a range of ways in which you would meet those your responsibilities and as you suggest it’s pretty context specific. Now that’s been the approach in Canada for a long time and there’s been guidance in place for for about a decade now but the Privacy Commissioner of Canada Daniel Therrien had surprised many just a few weeks ago by proposing a significant change. Perhaps you can describe what the commissioner’s office now has in mind.

David Fraser:
Yeah I wouldn’t characterize as they’re proposing a significant change. I guess he announced the significant change with respect to his own interpretation of the statute. So we’ve had this consensus since 2001 and so for more than 15 years on how cross-border transfers need to be managed and then certainly we had some formalization of that with Jennifer Stoddart’s guidance in 2009 and so what the current commissioner has proposed is that consent will be required for all transfers of personal information and his guidance focused on cross-border data flows. But I think one of the significant issues that a whole lot of people noticed almost immediately is that because our statute doesn’t deal with export of information from Canada at all it’s not even mentioned. If you required consent for a transfer outside of Canada, you have to require consent for a transfer within Canada and his logic, which I don’t agree with, is that a transfer even though transfers are called transfers compared to disclosures which in the statute are called disclosures. His view is that a transfer is a disclosure and a disclosure requires consent and therefore you have to get consent for any transfer of information. So he’s focused on cross-border but there’s going to be a collateral effect on any sort of movement of information from one company to another from one company to a service provider that I think is ultimately going to be very disruptive. And it’s been interesting because I’ve spoken to a large number of people who practice in this area many of whom think that ultimately it’s not rooted in the statute and ultimately will be probably more disruptive.

David Fraser:
What in my personal view what should have happened and certainly if he wants to rethink these things absolutely that’s I think law reform is part of his job and he should have had a consultation on the topic with a proposal that would then be taken to parliament and taken to the government to say look that the cross-border data transfers are now a concern of ours and for some reason that that concern has become more acute since 2001 and this is the way we need to rethink it rather than unilaterally abandoning what had been the consensus of the interpretation of his statute for quite a long time now which will really kind of throw a monkey wrench into a whole bunch of things.

David Fraser:
So one example is you cannot clear a credit card transaction in Canada entirely in Canada. You use your Visa, MasterCard or your American Express that is actually that has to be cleared in the United States. That’s just the way that the system works. So how are you going to interpose consent into that system. And it’s one thing if you talk about it on a go forward basis for any kind of new collections, use or disclosure. But most people have credit cards in their pockets that they’ve had for a dozen years. If they’re going to be incumbent upon the banks or Visa to go back to all of those consumers and say hey look we need your consent. Oh and here’s another kind of vehicle defect that the logic is if you don’t consent we’re going to take away your credit card which turns consent in that context into a bit of an illusion.

Michael Geist:
Sure no it doesn’t sound like that’s real consent if the option is you have the credit card or you just don’t.

David Fraser:
That’s right. Yeah. So to take a take it or leave it sort of sort of scenario which when we have more recent amendments to PIPEDA that talk about kind of raising the level of consent the threshold for consent and what’s required. It really doesn’t make sense to have like two steps forward on the transfer issue and one step backward on consent.

Michael Geist:
Right. And that sounds like if we unpack what you’ve just said it sounds like we’re talking about a whole series of concerns. There’s certainly the concern about the impact that had that it would have on surely current practices the impact that this would have on many of. Much of the data that’s already been collected or the relationships that exist between various organizations and their customers. There’s the concern that this isn’t cross-border at all that this is just data transfers full stop which is just such a common activity within current modern commercial activities that’s going to have a profound impact there. And then I suppose there’s finally this concern that we’ve got a privacy commissioner that it appears is reinterpreting longstanding approaches doing so rather than going through a consultative process that it would ultimately lead to actual legislative reform is in effect simply saying well this has been the law all along. I’m just changing how I’m interpreting that law.

David Fraser:
Yeah and I think that that comes to the bigger picture issue which is that I think that we have a commissioner who wants significant changes to our statute much more dramatic changes than any of his predecessors did. And in the absence of parliaments affecting those changes he is looking at the statute and seeing what he can do himself to give effect to those changes and I have concerns about that from just a rule of law perspective the kind of Parliament has handed him a statute and said this is this is a framework within which you operate. So there’s this four corners to that statute and we need certainty within it. That’s a kind of creative reinterpretations that only get him partway where he wants to go or are problematic. So just again on that on the cross border part of it I have clients who are for example American companies that operate in Canada that have in fact stored data in Canada. But let’s say they consolidate their back office stuff and they want to move all their Canadian data to a data center in the United States or to offices in the United States. They can do that without they’re unaffected by this because it’s not a transfer from one company to another it’s the US company operating in Canada moving it to the US and surely if the mischief to be addressed is the cross-border movement of information that should be captured but it’s not because it doesn’t get its hooks into the transfer provisions within principle one in the statute.

Michael Geist:
That’s an interesting illustration of how something designed to deal even with cross-border data transfers may not in some circumstances. What does it say about the accountability principle? If when you’ve got the commissioner seemingly tossing it away or acknowledging that it is not as effective as has previously been suggested if the commissioner’s in a sense saying we relied previously on the accountability principle for data be transferred as necessary and now we’re going to escalate some of the requirements there with new consent requirements. That seems to suggest that he doesn’t have confidence that the accountability principle provides the level of protection that for many many years the office said it does.

David Fraser:
Yeah. And I think it’s not throwing out the accountability principle. I think it’s I guess just reading between the lines in terms of I haven’t had a conversation with him about it in any detail but supplementing it by the consent principle. And I think there’s other issues with it related to. So for example our system in Canada under PIPEDA requires consent for the purposes so you give notice of the purposes of the collection industry disclosure under principle too. And then we get consent for those purposes. So we actually have a recent decision I think of the Federal Court of Appeal that said it’s all about the purposes. It’s not about how it’s processed or where it’s processed. We have the Toronto Real Estate Board decision where one of the issues was whether or not real estate brokers had gotten an adequate consent to go from kind of limited access to information about real estate transactions in the back office to allowing that information to be made available online. And the Federal Court of Appeals said look they got consent for the purposes in the first place the purposes haven’t changed. That means by which people are getting access to that information with the means by which has been disseminated as the only thing that’s changed.

David Fraser:
And so I think that there’s a disconnect. So if you if you wanted to do regulating cross-border transfers you should do it properly and it’s to be done from the ground up rather than taking a bunch of square pegs and trying to fit them into a bunch of round holes. And so the commission’s consultation on this which I’m not sure how much of a consultation it is because he said this is our policy we’d like your input on it and please let us know by the Fourth of June how much it’s going to be informed that set that it really should have been a more holistic approach to say what do we have an issue with cross-border transfers. Is that in fact a problem. The Patriot Act boogey man that we saw in the early 2000s is no longer the big boogey man that recent people got their heads around it. So what is the issue and what would be the appropriate solution rather than saying unilaterally I see an issue with this and I’m going to try to address it within anything that I can justify in my statute. And it just doesn’t fit. And ultimately I think it’s up to Parliament to decide whether or not that’s that’s appropriate and in effect this goes further than the GDPR does when it comes to cross-border data transfers.

David Fraser:
Because if you’re in Europe you can move data to Canada without consent because Canada has adequacy there’s no adequacy mechanism in PIPEDA that that he could lean back on. And that’s that’s just that the nature of the statute.

Michael Geist:
Right so it’s more broad based even in Europe in that respect which is interesting.

David Fraser:
If the boogey man is kind of law enforcement access to information by US authorities which has always been the kind of the Patriot Act boogey man from many of these concerns about cross-border data transfers particularly coming out of British Columbia and Nova Scotia statutes. Would he really and can he really interpret the legislation to limit or restrict transfers to the United States, our most significant trading power for a trading partner. Again this suggests to me we really need to take a step backwards and look at it in the broader context and see what is the mischief we’re trying to address and then how do we manage that.

Michael Geist:
You mentioned that the Privacy Commissioner seems truly constrained by the law is now looking for ways to almost bust out or reinterpret cross-border data transfers is obviously the most recent most obvious example of that but are there others and in particular I’m thinking now around the so-called right to be forgotten or the commissioner would call it the Right to de-index.

CTV News:
Canadians could soon have the right to be forgotten. It’s a matter being considered by the Federal Court of Canada this year at the request of the Privacy Commissioner. The right to be forgotten would allow people to request search engines remove or potentially embarrassing links about them.

David Fraser:
So this is an example. And so the commissioner when Commissioner Therrien started came into office he did a tour around and was looking to prioritize kind of the strategic priorities for his office. And one of the priorities that identified was online reputation and did a significant consultation about it. He appeared to be kind of open minded and saying hey look does does PIPEDA. Does our federal privacy statute include or does it adequately deal with online reputation. And does it include a right to be forgotten. And if it does what would that what would that look like. And so if I recall correctly there were about 30 submissions were provided, 30 substantive submissions were provided as part of that consultation.

David Fraser:
Most of the expert consultations or submissions I did one and many people that we know did the submissions suggested to him that PIPEDA currently as it’s drafted does not include a right to be forgotten and many people also cautioned that there would be serious Charter issues with freedom of expression. So the European Union under GDPR and actually under the Data Protection Directive before it has been interpreted by the top court in Europe to include a right to de-indexing and a significant part of that background is that that decision was based not just on the privacy law but also on European constitutional documents which include a constitutionally entrenched right to privacy that is alongside a constitutionally entrenched right to freedom of expression. Now we only have in our charter a constitutionally entrenched freedom of expression and so there would likely be significant issues in any law that says that thou shalt not provide particular search results is going to affect freedom of expression and would have to be justified under Section 1. That’s a reasonable limitation provided provided by law. And so many people kind of cautioned that that you know this is not something that that could just be read into PIPEDA and even if you amended PIPEDA to include such a right you’d have to be very careful about the constitutional issues.

David Fraser:
Now at the end of that process he produced a document, which did contemplate in his interpretation of the statute that there is a right to de-indexing in the statute. And there have been a number of complaints sent to his office from individuals many of whom are really quite sympathetic looking to have search results removed from principally from Google as the largest search engine operator in Canada but from others as I understand it, where the contents lawfully exists on a website on a media site or on a blog or someplace else like that. And there’s no way to have it taken down because it’s not defamatory for example but looking to have it removed from search results if you search for that person’s name. So similar to the right as it has been implemented in Europe which has resulted in a reference to the Federal Court of Canada by the by the Privacy Commissioner to determine some of the questions that this raises. But certainly not all of them.

Michael Geist:
So the issue now before the courts do you know where that stands at the moment?

David Fraser:
I do. So kind of full disclosure I’m co-counsel for Google on that on that particular matter. And so the three questions were put to the three issues were put to the Privacy Commissioner with respect to kind of the issue in one particular complaint. So PIPEDA applies to the collection use and disclosure of commercial personal information in the course of commercial activity. And the position was put forward that operated the search engine connecting news media to news readers is not inherently commercial activity and therefore PIPEDA doesn’t apply to that search transaction. The second issue put forward to the commissioner was that there’s a journalism exception in PIPEDA that says PIPEDA does not apply to where the collection use the disclosure of personal information this for journalistic purposes and for no other purpose. And so it was put to the commissioner that since that connecting news media outlets with readers is a journalistic function and therefore PIPEDA doesn’t apply. The third issue was that at the end of the day any requirement under Canadian law by a Canadian regulator to remove links to content that legally exists on the Internet infringes the charter and cannot be saved by Section 1. And therefore the whole thing was unconstitutional and we had proposed to the Privacy Commissioner a kind of collaborative judicial review because during during the consultation pretty well everybody had an opportunity to have their say but ultimately it was going to be decided by a judge as happened in Europe. And so we proposed that the three questions be put to the courts in a judicial review. And instead the commissioner initiated what’s called a reference under the federal courts act where only the first two questions were put to the court. The charter issue was not expressly before the court. And they’ve of really gone out of their way to try to prevent the charter question from being heard by the court at this stage. And so so currently where it stands is that the number of media parties applied to interview including some of the publishers of the content at issue in this particular case and they were denied. And it was said that it was premature and an application was made to the motion through the case. Now that’s a judge and ultimately to prothonotary to clarify that there are constitutional issues that are inherent in the first two questions. And that was that we’ve got a decision a couple weeks ago where the prothonotary said that that’s ultimately going to be an issue for the trial judge or for the ultimate judge to determine and it was kind of premature to fully resolve that question now. So it’s in its process I would expect that we would probably see a hearing on the merits in the fall and hopefully a decision shortly after that.

Michael Geist:
Interesting that sort of case that people are certainly going to keep an eye on and one suspects had been before multiple courts with many interveners along the way given the kinds of issues that you’ve just talked about. We would be remiss before for we close if we did touch on the recent Facebook investigation and the results that came out both from the Federal Commissioner and the B.C. Commissioner, most notably in the aspect that I think got the most amount of attention was Facebook simply saying well those might be the recommendations that you have at this stage we’re not prepared to follow them.

CBC News:
Canada’s privacy commissioner is blasting Facebook in a new report. He says the social media giant broke this country’s privacy laws and when he told Facebook to clean up its act it said. Now the commissioner says that’s unacceptable.

Commissioner Therrien:
They disagree with our legal conclusions. I don’t think it should be on in 2019 in terms of privacy legislation that a company a private company with its interests can say to a regulator: Thank you very much for your conclusions on matters of law. But we actually disagree and we will actually continue as we were. It is completely unacceptable.

Michael Geist:
They got caught a lot of people by surprise. This notion that somehow privacy law compliance might be voluntary or that there might actually be some out there that would say well we don’t have to follow what the commissioner says. Could you talk a bit about your thoughts on that decision and the issues around enforcement which of course go to the heart of some of the things that the Privacy Commissioner has been talking about as a shortcoming within the law.

David Fraser:
Absolutely. And I don’t think there is there is any doubt that the commissioner is finding itself frustrated that his interpretations of the statute are not necessarily prevailing and that he doesn’t have the ability to order people to comply with with his view. And so I’m at a conference right now and there was a panel yesterday that included Michael McEvoy the Information Privacy Commissioner of British Columbia and Commissioner Therrien talking about the the Cambridge Analytica and Facebook investigation. And one of the things that was said by Commissioner Therrien was that he’s frustrated that that his view his interpretation of the statute doesn’t ultimately prevail. And that’s one of the reasons why he needs order making powers. And I think it’s worth kind of breaking that down a little bit and looking a little bit at what came up in that particular investigation and then the positions that Facebook put forward which included that. So in the whole kind of Cambridge Analytica thing, that the individuals used an app that existed on the platform of the Facebook platform that resulted in their information being transferred to the app owner for want of a better term and then that app owner contrary to the promises that they made to the users transferred it elsewhere and it was then it was misused in connection with the political activities and things like that and Facebook put forward the position as I understand it that in fact that Facebook isn’t primarily accountable for what happens by those app developers that an individual made a choice to use that particular app and instead of it being we can actually kind of go full circle a little bit. That wasn’t to transfer information that was disclosure of information to a third party. That was triggered by the user and therefore the accountability principle is not it’s not in play in the way that the Commissioner suggested. So ultimately it rested on a different completely different view of legally what was going on in that particular scenario. And I think we have an arguable position to put forward. And so they simply did not agree with the legal interpretation of the statute. And ultimately it goes to the courts in order to be resolved and that’s how PIPEDA was implemented. That’s how it was drafted in the late 1990s and came into effect in 2009. And we’ve also heard from the commissioner particularly Commissioner Therrien that he needs order making powers because he doesn’t have the ability to require companies to do ABC or D or is looking for it to impose penalties on them. In effect our statute was designed so that the parties can take it to the court and ultimately it’s going to be for the for the court to decide. So certainly so things are unfolding I guess in a way as they should as the statute was drafted. But I can see his concern about that. Now I also have concerns with just giving the commissioner an order making powers because you would have to significantly re-jig his office in order to make sure that you’ve had procedural fairness.

David Fraser:
So we have the example of the Canada Human Rights Commission and tribunal and the Competition commissioner and the Competition tribunal in order to make sure that the advocate is not also the investigator the judge jury and ultimate executioner. And I would point to the CRTC enforcement folks under CASL or anti spam law as being an example of what actually could go wrong when you kind of include too much of that within within one body and so certainly I expect we are going to have and kind of the rumours are that we’re going to probably hear an announcement from the governments related to perhaps a new PIPEDA review. And so if you’re looking at kind of order making powers we need to be very careful to make sure that all of those things are taken into account. One of the things that was quite interesting on this panel that I referred to was also the assistant information commissioner from the United Kingdom talking about all the different firewalls between different parts of that office because they also have investigators they actually have prosecutorial functions as well. So they can issue criminal charges under under UK law. But they have to bend over backwards and be very diligent to make sure that those different functions are insulated from the other in order to guarantee procedural fairness.

Michael Geist:
David thanks so much for joining me on the podcast.

David Fraser:
No it’s a pleasure anytime.

Michael Geist:
That’s the Law Bytes podcast for this week. If you have comments suggestions or other feedback, write to lawbytes.com. That’s lawbytes at pobox.com. Follow the podcast on Twitter at @lawbytespod or Michael Geist at @mgeist. You can download the latest episodes from my Web site at Michaelgeist.ca or subscribe via RSS, at Apple podcast, Google, or Spotify. The LawBytes Podcast is produced by Gerardo LeBron Laboy. Music by the Laboy brothers: Gerardo and Jose LeBron Laboy. Credit information for the clips featured in this podcast can be found in the show notes for this episode at Michaelgeist.ca. I’m Michael Geist. Thanks for listening and see you next time.

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The post The LawBytes Podcast, Episode 11: Reinterpreting Canadian Privacy Law – David Fraser On Cross-Border Data Transfers, the Right to De-Index, and the Facebook Investigation appeared first on Michael Geist.

The LawBytes Podcast, Episode 10: Lowdown on Lawsuits – James Plotkin on Copyright Threats, Notices, and Lawsuits

Michael Geist Law RSS Feed - Mon, 2019/05/06 - 09:05

Copyright threats and lawsuits against individuals have been around in Canada since 2004, when they were rejected by the federal court. Those threats receded for about a decade, but now they’re back. Copyright notices, litigation threats, settlement demands, and actual lawsuits have re-emerged at the very time that the music and movie industries are experiencing record music streaming revenues in Canada and massive popularity of online video services. James Plotkin, a lawyer with Caza Saikaley in Ottawa, joins the podcast this week to help sort through what the notices mean, the implications of the threats and lawsuits, and where Canadian law stands on the issue.

The podcast can be downloaded here and is embedded below. The transcript is posted at the bottom of this post or can be accessed here. Subscribe to the podcast via Apple Podcast, Google Play, Spotify or the RSS feed. Updates on the podcast on Twitter at @Lawbytespod.

Credits:

House of Commons, November 27, 2018
CBC News, Infringement Notices
CTV News, Company Collects 1 Million IP Addresses of Canadians Suspected of Illegally Downloading
CBC, As it Happens
CBC, Mainstreet NS

Transcript:

LawBytes Podcast, Episode10.mp3 | Convert audio-to-text with Sonix

Michael Geist:
This is Law Bytes, a podcast with Michael Geist

David Lametti:
What began to happen in Canada, Mr. Speaker and I saw this myself a number of times in my teaching is that American rights holders through American law firms would often allege content infringement in Canada and send out a letter saying you’ve You’ve infringed copyright. We’re going to sue you please pay x thousands of dollars by clicking on this link and we will forget this. And sadly Mr. Speaker a number of people didn’t realize that this kind of claim was actually being made against Canadian law in contravention of Canadian law and actually paid out.

Michael Geist:
Copyright threats and lawsuits against individuals have been around for awhile. The Canadian Recording Industry Association, which now calls itself Music Canada, led the charge way back in 2003 with threats to sue Napster users. Lawsuits were launched a year later but were rejected by the Federal Court citing a confluence of concerns involving evidence privacy and the state of Canadian copyright law. Those threats receded for about a decade but now they’re back. Copyright notices, litigation threats, settlement demands, and actual lawsuits have reemerged at the very time the music and movie industries are experiencing record streaming revenues and massive popularity of online services. There’s a lot of confusion and concern about what’s happening. What the notices mean,the implications of the threats and lawsuits, and where Canadian law stands on the issue. Here to help sort through what’s going on is James Plotkin, a lawyer with Casa Saikeley in Ottawa who has taken on several of these copyright cases.

Michael Geist:
Grateful to you for coming on and helping unpack a little bit what’s taking place. I feel like for this episode in particular we need the caveat this is not legal advice we’re having a conversation about our understanding of the law.

James Plotkin:
Of course I would never give legal advice into a microphone at a podcast.

Michael Geist:
Good to hear no nor should you. So why don’t we start by clarifying the difference between the threats that people are seeing often times through the notice and notice system as opposed to the lawsuits and why don’t we start with the threats and the notice and notice system.

CBC News:
Did you hear the one about the 86 year old grandmother who is facing a five thousand dollar fine for illegally downloading a zombie killing video game. It’s no Halloween joke. Ontario’s Christine McMillan recently received two emails claiming she had illegally downloaded Metro 2033. She says she’s innocent and insists her wireless connection may have been hacked. Well guilty or not, McMillan is one of tens of thousands of Canadians who received similar notices. Part of the new rules that came came in under changes to Canada’s Copyright Act.

James Plotkin:
The notice notice system came in 2012 when Canada modernized its copyright legislation and this was heralded as a quote unquote made in Canada approach to dealing with online piracy of music, films and other copyrighted content. This was in juxtaposition with the notice and takedown system that was in effect and has been in effect in the United States since about 2000 under their copyright legislation called the Digital Millennium Copyright Act. And so the way the notice and notice system works essentially is a rights holder may send a notice of purported infringement or notice of infringement to an ISP and the ISP then without actually disclosing the identity of the subscriber forwards that to the subscriber with usually an introductory text saying you know we received this from the rights holder. We have not verified its veracity but here it is. And then the content of the notice comes to the individual.

Michael Geist:
So the any piracy agency or the rights holder whoever happens to be sending these notices doesn’t know the end of the identity of the individual and the ISP isn’t disclosing it. They’re merely serving as a conduit to transfer on this message.

James Plotkin:
Correct. And that’s under the notice and notice regime and I’m sure we’ll talk a little bit more about some other mechanisms that rights holders are used to in fact get at that information. But the notice and notice is an administrative process essentially that’s supposed to act as an educational and deterrence tool to individuals who hopefully by receiving one or more of these notices will curb whatever habits that they have been doing online to the extent that those individuals subscribers themselves actually have done the infringement. That’s a totally different matter. They may not have been the individuals who infringed if anyone did at all.

Michael Geist:
Okay right. So that I think that’s important point to make. So we’re talking here about an allegation based on some entity trying to monitor activity online. This isn’t proof, it’s not determinative it’s not a judgment.

James Plotkin:
It’s not proof it’s not determinative. And again it’s meant to be a notice it’s not any proof of that leak first of all that legal rights even exist and to the extent that they do that they’ve been infringed. And to the extent that they exist existing have been infringed that they’ve been infringed by the individual who receives the notice because we have to recall that the ISP forwards this information to their subscriber. But if you have six people living in your house and 20 people visiting and using the Wi-Fi it might very well be that someone other than that subscriber did the infringement to the extent that there was one.

Michael Geist:
OK fair enough. And do the ISP have to forward on these notices?

James Plotkin:
And in fact they do. And while there are no damages or any remedies against individuals who received notices there are statutory damages under Section 41.26 of the Copyright Act that can be levied against the ISP for failing to comply with the system and in fact one of these rights holders called me to productions is currently pursuing TekSavvy a Canadian ISP attempting to get these statutory damages for alleged failures to properly forward these notices.

Michael Geist:
Ok so the internet providers themselves obviously aren’t self generating the notices they’re serving as this conduit forwarding on the notices and under the current system effectively they’ve got no real choice but to forward on those notices or the ISP itself faces the prospect of real liability.

James Plotkin:
That’s correct.

Michael Geist:
And it’s interesting. My understanding is the systems was in place well before it became formalized within the copyright act in 2012 and then took a couple of years until it actually took effect but this was used on an informal basis for for many years and seemed to have some amount of effectiveness in terms of addressing the behaviour that been talking about. So where did we go wrong in terms of what what we see taking place right now.

James Plotkin:
Well I suppose whether we went wrong depends on depends on who you ask. My one of my issues with this system from my perspective is that up until recently and and quite recently in fact the content of these notices were not regulated at all. So rights holders could essentially put in whatever they want. And I think there may be varying levels of classiness by people in their notices I think some had more of a shakedown approach where as others were actually trying to educate and deter further infringements. And this all changed. Recent about six months ago in fact when parliament part of the budget bill. I believe it was C-86 introduced an amendment to Section 41.25 of the act and added a subsection 3 which prohibited the inclusion of certain content and among that offers to settle and any request or demand from it for either payment for an alleged infringement or for personal information. So this could not be used as a way to actually get at the person’s identity or to extract a settlement from them directly.

Michael Geist:
Ok so when you say some were being used as a shakedown essentially what you’re saying is that some were putting in some sort of settlement demand or legal demands in the notification itself.

CTV News:
Frankly this sounds a little bit creepy. So now I know what it does. I think you know if there’s a million Canadians out there million Canadians being monitored who exactly is doing the monitoring and what kinds of information do they have. Ok. Well we are one company that is doing monitoring of pirated content. So we’re not monitoring people we’re monitoring the pirated content. If people go to the pirated content to download it they may become subject to our monitoring effort.

James Plotkin:
Yes. I’ve seen I’ve heard anecdotally and in one instance I’ve actually seen one of these notices from from way back and yeah the content as I said there are varying degrees of classiness. I mean I recently a client of mine showed me one from HBO and they didn’t do that. It was really more of an education approach. They didn’t threaten the lawsuit they didn’t threaten to take legal action but you know left them on the table of course in the event the infringement continued and he also said that it came remarkably quickly. So this individual had downloaded an episode of the popular show Game of Thrones and he said that shortly within five or 10 minutes after having completed the download he had received a notice from HBO or from the ISP or HBO via the ISP quite quickly in fact and so they asked why.

Michael Geist:
Within minutes of downloading it went from HBO or ever does the monitoring for them to the ISP and then forwarded along directly the subscriber.

James Plotkin:
Within minutes and so it seems HBO might have even a more advanced content surveillance system than others but that’s I’m just speculating.

Michael Geist:
Well that’s pretty amazing to hear the speed with which they were able to do that. Now for those that were so-called less classy they’re including I assume they included some kind of link ultimately to saying if you if you pay if you please click on this link or click on this link and there there would be some sort of page that would allow the person to pay a fee presumably and then settle the claim they’re doing so without knowing who the person is, without having proven the allegation, they’re just in a sense taking advantage of a subscriber who might not be aware of the fact that they don’t know any of that and simply pay out of fear for what might come next.

James Plotkin:
That’s right. And that’s well that’s what I’ve heard and I. To be fair I haven’t seen one of those with the link itself but I have heard again anecdotally stories of that nature and you know is frightening language is intended to extract settlement from people who may or very well may not have perpetrated the act of alleged infringement. And so that I think was a concern and I think it was borne of that concern that this new amendment to the law came in effect and actually started regulating the content and I know that this was criticized by certainly some people for not having happened sooner.

Michael Geist:
Sure. And I think I was one of those people.

James Plotkin:
You might have been.

Michael Geist:
I should note that I have seen some of those those notices there was a period of time where I was getting e-mails from recipients, certainly on a weekly basis. Not sure what to do. And and left left feeling rather helpless and a little bit hopeless because it can be I think for a lot of people are pretty scary thing to receive what feels like a legal demand. So the government sought to address this by by prescribing as you suggest limits on the language.

CBC As It Happens:
What happens when say HBO finds out that you have been illegally downloading the game of thrones is that they send an e-mail to your Internet provider. And as of Canadian rules that came into effect in January 2015 your provider then has to ask that e-mail on to you. And that is what has been happening at the University of Manitoba repeatedly.

Michael Geist:
Is this likely to to address the problem.

James Plotkin:
Well I suppose time will tell and I can’t claim to have any real empirical information on this although one hopes that to the extent that the notices can no longer demand settlement or give any kind of indication that liability has been proven or found or that the person who receives notice themselves are the ones who are liable if anyone should hopefully cause people at least the careful readers to maybe look at blogs like yours or other sources online to kind of you know inform themselves as to what these notices really are and I guess the most we can hope for is outside education spurred on by a less aggressive content in the notices.

Michael Geist:
Let’s hope so, in the sense if you believe this is a problem and I certainly do. I know for myself having spoken to at least a couple of ISPs there is a lingering concern that the they may still be forwarding on many of these notices and I think at least anecdotally that’s what’s taking place in part because there is while there may be rules now about what can be included, there is no standardization in terms of what’s included in the notices. Is more or less classy so to speak. And if you’re trying to forward on those notices as quickly as apparently they are sometimes literally doing it within minutes, the ability to actually dig into whether or not it includes any of the content that might be offside with the government wants to see in a notice represents a significant challenge because it doesn’t say that you can’t forward that notice it merely says you’re not required to forward it on a notification if it includes that information.

James Plotkin:
Right and I think to that point and it’s a good one. These processes obviously in the HBO case but certainly as far as I’m aware across all of the ISP certainly the big ones is is an automated electronic process. It’s not a manual one. And for those who are more interested about kind of the mechanics at least about how Rogers does this I would commend to you to look at the oral submissions and read the facta of the parties to the Voltage and Rogers case that the Supreme Court decided recently because they go into some detail. Counsel for Rogers goes into some detail on really how this is done on the ground and it’s certainly not an individual saying oh well here’s a notice and here’s what it says and they’re not really checking it for compliance in that way as far as I’m aware. And as far as the argument indicated to me when I viewed it right.

Michael Geist:
And I think that’s my understanding too the numbers are just too big. Terms of being able to look at this individually for an ISPs perspective that provides a useful segue into the other side of the story and in the sense the Rogers Voltage case sort of sits a little bit in the middle with some of the stuff because it of course had references to notice and notice and litigation as well perhaps why don’t we unpack a little bit that case and then get into the other side of what we’re seeing taking place which is the lawsuits side.

James Plotkin:
Sure. The Rogers and voltage cases actually I think useful in a couple of respects. But if I boil it to its essentials it was really about whether and to what extent an ISP can charge for the cost of complying with what’s called Norwich order and explain what that isn’t just a second. Over and above what they have to incur to affect their duties under the notice and notice regime because under the Copyright Act the there are certain obligations in the court in this case and both express and from those flowing from them implied obligations as to information retention management sending the information along as regards the notice and notice regime. And currently while the law leaves room for the Governor in Council to permit the ISP to charge for that currently there is no such prescription and so for that reason as interpreted by the courts, the ISP is are forbidden from charging any fee for compliance with the notice notice regime.

Michael Geist:
Okay, let’s just pause for a second to make sure that that everyone’s clear on that system we’ve talked about how ISP ISPs are processing large numbers of of these. The system envisions the possibility of ISP charging for this but only if the government sets a fee. And at the moment the government hasn’t set a fee. So from an ISP perspective one of the reasons presumably they have sought to automate this isn’t just volume but it’s of course the cost because at the moment all of those costs are being incurred by ISPs and ultimately arguably it’s going to be subscribers, Internet users that are going to bear some of these costs assuming that those costs get offloaded at the end of the day as part of what we pay monthly for Internet services.

James Plotkin:
Correct. Okay I agree.

Michael Geist:
All right. So they’re not charging for it. The in the case case in this case. So in the Supreme Court of Canada case talks about that interface between the notices and then Norwich order.

James Plotkin:
Okay. So Norwich order is essentially a third party discovery order that permits somebody in this case a rights holder to obtain information from a non-party that isn’t necessary to prosecute the action. And so in this case the way these lawsuits have gone and there were a number of them there’s the famous voltage pictures reverse class action. But in fact there’s 16 or 17 other these lawsuits smaller ones going in the federal court and you can talk about that later. The way that these work is the rights holder generally enters into an agreement with a third party Internet surveillance company that monitors the BitTorrent protocol to ascertain which IP addresses are in the swarm and uploading and making available the work at any given point in time and then with the IP address the rights holder can determine which ISP the person is with but does not have their identity and so in order to actually send the individual a statement of claim and serve them and get the actual legal process going against them what they do is begin the claim against John Doe’s against basically placeholder defendants obtain Norwich orders from various ISP is to disclose the subscriber information and then sue those individuals. And that’s essentially the the system that has been going in the federal court now for a couple of years.

Michael Geist:
So rights holders or at least the agents working on behalf of these rights holders actively monitoring internet traffic identify IP addresses. But in doing so don’t necessarily know who those individuals are though they will know from the IP address block which which provider the person happens to be using it. And once they’ve done that they’re then able to use this legal process to effectively require the Internet provider to disclose the identity of the subscriber so that they can proceed with their legal action.

James Plotkin:
Exactly and now looping back into Rogers and Voltage that case was about what again as I said whether and to what extent the ISP can charge for the cost of complying with the Norwich order for any activities that are not expressly or impliedly already required to discharge their notice and notice obligations because as we discussed they can’t charge for that and there is the court found some overlap as a technical matter in what has to be done for one in the other. But the court found that it was not an entire overlap and therefore sent it back to the federal court to actually determine the dollars and cents issues.

Michael Geist:
Ok. So that particular case ultimately going to Supreme Court of Canada as you as you indicate leaves open the possibility that at least for the sort of that second stage where if someone is looking now to actually engage in a legal process and sue Internet users there is the possibility that the ISP will can levy some of their costs not the ones that involve the cost of complying for the notice and notice system but additional costs that might be additive that are specific to this kind of litigation.

James Plotkin:
Certainly and it could really have a big impact on where the court actually lands on how much can be charge in any given case might have an impact because there’s a big difference being five cents and five dollars and you’re talking about the cost of retrieving thousands and thousands of records. And given that the statutory damages which is likely the remedy that the rights holders seek to obtain on the assumption that they actually want to adjudicate these things on the merits for non-commercial infringement ranges between only one hundred and five thousand dollars there does become a potential cost recovery issue if the cost of obtaining the identities of the would be defendants is restrictive or prohibitively high.

Michael Geist:
And I want to continue with the litigation but pause for just one moment because that notion of increased costs to least obtain that information might have a real impact on the ability to pursue this. Is that part in your view of kind of the system as a whole which it seems like is reliant on the notion that individual internet users will not fight that the only way that you can make this work if you are bringing lots and lots of potential actions against Internet users is essentially based on keeping your costs very low either through threats like we saw with notice and notice or through litigation which settles quickly because the moment you start increasing the costs of litigation either to get the in get the identity of the subscriber or potential even further once you actually formally sued having a subscriber say well I didn’t do this or I don’t think I’m liable and I’m going to fight you suddenly now the the system of trying to extract some kind of revenue from these individuals kind of withers away because the costs become prohibitive.

James Plotkin:
Correct. And I think there are two sides to that as well. And certainly the rights holders and this argument was made by Voltage in the Supreme Court. This is for them they say in access to justice issue because these are you know individuals or corporations who want to enforce their copyright and they’re saying that based on the system as it is procedurally again that the costs of litigation coupled with the low statutory damages and the frankly inability to prove real common law damages as far as I can tell makes it you know as a practical matter untenable for them to enforce their copyrights. That’s their side of the story. And then the other side as well that perhaps the court system is being used here as a settlement mill in a way that is not necessarily commensurate with adjudication on the merits which is generally the goal of most courts when when claims are brought of course settlement is always encouraged to unburden the court system. But if you’re using the court system specifically as a settlement device rather than for an adjudication I mean query whether the courts will ultimately be happy with that. But you know it has been going on for a couple of years and so at this point I don’t know that anybody has really pressed the issue.

Michael Geist:
Fair enough. Now let’s talk about what’s been going on for the last couple of years. You mentioned there are at least a couple of different kinds of lawsuits taking place maybe you can unpack that a little.

CBC News:
People over forty five years old can remember a time when you wanted to watch a movie you had to either go to the movie theater or wait for it to play on television. There were no VCR is there was no Netflix, no computers 40 years ago. How the world has changed now people can watch movies whenever they want. And for more choice and titles some people choose to download movies using BitTorrent that are distributing material for free. That has resulted in some people getting letters from production companies saying they’re being sued in what’s called a reverse class action.

James Plotkin:
So the one that everybody knows most about is the is the Voltage pictures John Doe reverse class action so-called that is proceeding in respect of the Hurt Locker film. And this was the first one of these Voltage Pictures actions to go although what’s getting a significantly less attention and maybe a little bit more now is the 16 or so other lawsuits started by other movie studios that all appear to be linked with Voltage. I mean for instance all of these films are within the voltage catalogue number one and they’re also all represented by the same counsel. So it seems to me that while these are different plaintiffs in name these there is a common design here. And so these are not proceeding procedurally as reverse class actions or at least not yet or at least not on a formal basis because the lawsuits are commenced as simplified actions which is the simplified rules under the federal courts rules dedicated to cases where the monetary relief in question is fifty thousand dollars or less and there are a few other restrictions so I won’t bother getting into. But what they’re doing is they are once again suing hundreds in some cases well over a thousand individuals with respect to each of these films but they manage to do so by issuing a single statement of claim for fifty dollars whereas any defendant who wishes to defend on the merits because this is not a class defence must actually defend on their own and do so individually retain counsel represent themselves or whatever.

James Plotkin:
So the access to justice and cost savings do exist. But I would I would submit that they are perhaps a little one sided in favour of the plaintiff in this instance and the clients that I represent I have a close to a dozen active files in these matters none of them are in the Voltage Pictures because that’s a there’s a whole different issue there with certification. But the individuals who are getting statements of claim in the mail in these other cases are in frankly a more pressing position because they have deadlines to defend or negotiate or settle or and they often really don’t know what to do when they come to me which is what I try to help them with.

Michael Geist:
Ok. Let’s just deal with the reverse class action quickly and then move on to the kinds of cases that you’ve been dealing with. So people may be familiar with class actions where there’s a large pool of individuals who may have been harmed in a certain circumstance. Individually their claim may not be worth that much but collectively it may make economic sense to come together and thus use the class action system. What’s a reverse class action.

James Plotkin:
Well true to its name it is the opposite of the normal class action wherein the plaintiff is the class. You have a representative plaintiff and you know a class of individuals with whom that person shares common issues and points of contention with one or more defendants. In this instance, it is one plaintiff and a pool of defendants who purportedly have engaged in activities that are common in law or in fact such that they are susceptible to class wide resolution and to just unpack that for a minute. A lot of the time people think that a class action always precedes with respect to the entirety of the claim but that’s not always the case. There are certain and individual issues that are not generally susceptible to class wide determination. You know so for instance causation in a negligence claim would be one damages in any sort of torts claim and indeed in this instance probably would also have to be an individual issue because where within the statutory damages the amount should fall with respect to any individual is dependent on the facts of their case and the factors in the law that are weighed to that effect. So even though this is proceeding as a reverse class action and there might be some common determinations for example that the plaintiff owns copyright in the work that is something that it would could be a common issue and is susceptible to class wide determination because it’s the same in respect of every defendant. But the fact that this is a reverse class action does not mean that everything will necessarily be certified as a common issue and therefore proceed on a class wide basis.

Michael Geist:
And where are we right now with respect to this that this particular court quite large claim?

James Plotkin:
So we’re now approaching the certification phase. So up until now the class has not as far as I know been exhaustively defined. And there was a security for costs motion that was brought by the representative defendant Mr. Solna and he was successful in obtaining security for costs but not mistaken the amount of roughly seventy five thousand dollars and I think that was fought but ultimately that has now been paid and so now that that’s been paid the process has been unfrozen and to the best of my knowledge and to be fair I haven’t looked at the federal court proceeding queries in a little while on this but I believe they’re now at the certification stage to figure out as I was saying what will be certified, whether there will be a certified class action and if so what issues will be certified for common determination.

Michael Geist:
So there’s still several legal hoops to go through here whether or not this gets certified at all and if it does on what basis and then of course there’s the prospect of potential litigation on those issues because that still doesn’t prove that that the in this case let’s say the individual users themselves infringed copyright in violation of let’s say one if that becomes one of the issues that does get certified.

James Plotkin:
Mm hmm. And also it’s worth noting that at certification in the ordinary course in a plaintiff’s side class action there is an opportunity and a mechanism for plaintiffs to opt out of the class so that they can pursue things individually. So likewise in this case one would think that defendants at the certification phase or thereafter would have a mechanism for opting out of the class as defendants. So for instance if you know a defendant number one wants to hire their own lawyer and doesn’t want class counsel they should have an opportunity to do so. And in my view that’s a that’s an important procedural fairness and rule of law issue that ought to be respected in the reverse class action context as well.

Michael Geist:
So in other words I don’t want to be sued under this class action I should have the right to say I don’t want to be sued under this class action.

James Plotkin:
And pursue me individually that that that should be a right and again at this point it’s all kind of up in the air. I know the reverse class action has some precedent in the provincial courts. The case law is kind of few and far between there and I’m not aware of any cases certainly in the IP context where this has happened in Canada. And I believe everyone agrees it’s quite unprecedented. So we’ll have to see how it goes.

Michael Geist:
So really a novel case the the other aspect of litigation you’ve alluded to already is that there are whole series of other cases that are proceeding not in the reverse class action side but as more traditional cases although using potentially some some tactics within the Federal Court rules of the Federal Court that raise some issues perhaps we can unpack that a little bit.

James Plotkin:
Sure. And I think it’s worth noting that the statements of claim in all of these actions at least the ones that I’ve seen and I’ve seen certainly over half a dozen of them are essentially identical in boilerplate with modifications for the name of the work and other such things. But really these claims are proceeding on two different theories of liability. Theory number one: you the Internet subscriber or the person who downloaded uploaded made the work available communicated to the public by telecommunication so on and so forth and therefore you are liable for infringement for being the person who did the things that only the copyright owner can do. The second theory is what they’re basically going is an authorization of infringement theory. So they’re saying well even if you’re not the individual who who perpetrated the act yourself it’s your internet connection and you are responsible in fact the words negligence and willful blindness if I’m not mistaken or even used in the pleading to suggest that something of a duty of care is owed to I suppose rights holders that if you’re the internet subscriber you’re responsible for what happens on your connection and therefore you have infringed by authorization. And that second theory is the one that I in particular I’m interested in challenging because as I read the case law that’s quite a stretch.

Michael Geist:
Well it would be remarkable stretch. It’s essentially saying that anyone who has an Internet service is responsible for a duty of care for how it gets used not just by themselves but anyone who might gain access just to even things like open networks are essentially forbidden because how could you meet your duty of care if you didn’t know necessarily who was accessing your network.

James Plotkin:
Correct. And there is case law on authorization of copyright infringement most notably. Well there are a couple of cases but most notably the there’s the BMG case and there’s also the CCH decision from 2004 which is mainly known as the benchmark decision on fair dealing in Canadian copyright law but it also deals with the notion of authorization. And in that case there is an argument that by making available the photocopiers in the Great Library the law society was actually authorizing copyright infringement to the extent that those who use those photocopiers use them to copy more than a fair amount of the work or any book or periodical or what have you. And the court said no, authorization is I can’t recall off the top of my head the words, but instead to countenance to sanction to to to actually proactively do something. The court does say that that as far as the evidentiary burden a quote unquote sufficient degree of indifference might in some instances amount to authorization although I won’t get into the background of this they cite some UK case law that again suggests to me does not support what the plaintiffs are doing here. But more importantly the court also says there is a presumption that when one authorizes someone to use a technology the presumption is that they’re authorizing only licit legal uses. And so that presumption can of course be rebutted. But the fact that in that instance the law society made the photocopiers available was not enough to show authorization and I would suggest that likewise here the fact that the mere fact that I allow you to use my Internet connection does not mean I allow you to do illegal things on it. I mean if we take this argument to the absurd if you use my Internet connection to go on Silk Road and hire an assassin I’m now you know an accessory to a criminal act and you know that’s a different context but I think that that it would be the reductio ad absurdum of this position.

Michael Geist:
You know the implications are enormous not just in copyright but but in other ways as well and really would change the way in which arguably change the way in which many people access the Internet are able to access the Internet today. So we’ve got claims both that people are infringing and then they’re using a network that is allowing for infringement and in doing so can be seen to be liable on those grounds. Have any of these cases gone to trial or any of these issues been tested yet.

James Plotkin:
No in fact in Canada all of these issues remain untested and all of the cases I was talking about have not passed the pleading stage yet and there’s no sign that they will anytime soon on the basis of the way things have been going because in several of these matters there’s an initial wave of Norwich orders and then people are sued and served and then there’s another wave maybe six months later and another wave six months later. And so you know the pool of defendants grows and grows. But ultimately this is the rights holders way of maximizing perhaps settlement opportunities by kind of having waves of notices and statements of claims that go out and so it kind of refreshes the settlements incentive pool if I could put it that way. I will say also that in the United States the 9th Circuit Court and the courts in California heard a case that is somewhat similar and it’s the law there is not exactly the same and I won’t get into the use idiosyncrasies but the court there found that a merely being the internet subscriber was insufficient to state a claim for contributory infringement which is again not the same but roughly analogous to authorization in the Canadian context.

James Plotkin:
And so again while there might be points of distinction I think that’s helpful. And I would also note that in the Rogers case and this was arguably obiter dictum, Justice Brown who wrote for the majority acknowledged at paragraph thirty five of the decision that there may be instances in which the person who receives the notice of being the subscriber is not in his words in fact will not have illegally share the copyrighted content online. And then they say that he says this might occur for example where one I have IP address while registered to a person who receives the notice is available for use by a number of other individuals and so without necessarily coming out and saying it it seems to me that Justice Brown is leaving room for the possibility that simply being a subscriber once again is not enough to amount to authorization and I expect that that is a point that will become live should these cases ever move forward to adjudication.

Michael Geist:
So we’ve got some there’s some significant arguments that can be raised certainly on the authorization side clearly including fairly recent Supreme Court jurisprudence that raises some real doubts about that legal theory and we’ve also got some questions even on the other side of their their legal theory does that suggest that Internet users can simply ignore this on the notice and notice side, it’s just a notice they can think about their behavior but they don’t have to respond quite clearly. What about if they happen to receive one of these lawsuits.

James Plotkin:
Well I. And again without advising or not advising it would be generally unavoidable to ignore a statement of claim because it would permit the plaintiff to proceed to get a default judgment against the individual which limits or or basically ends their rights to participate in the proceeding unless the default is lifted and then damages can be ordered against them in their absence and of course an undefended proceeding the damages are likely to be higher. And you know that that’s probably not a good strategy to ignore these notices.

Michael Geist:
Fair enough. And what kind of damages are we talking about in a copyright context.

James Plotkin:
Well again to the extent that the commerce the infringement is non-commercial in nature the well let me take a step back. Under the Copyright Act there are a whole suite of remedies. And with respect to the monetary remedies the rights holder can generally elect either between receiving ordinary common law damages which is damages for lost profits and lost lost opportunity and an accounting of profits which is basically a disgorgment as we say in law of the profits that the infringer made. So that’s one option. The other option to elect is for statutory damages which alleviates the burden of the plaintiff to actually prove any causal connection with the damages and it creates a range. But the law sets out a number of factors including you know the good and bad faith of the parties the need for deterrence a few other things for the court to figure where within the statutory damages range a an award should sit in a given instance based on those facts and again for non-commercial infringement. The range is one hundred dollars to five thousand dollars for all infringements. And that’s important because this means that in principle a person can infringe copyright for a number of years and then it’s really a race to the court. And the first rights holder who seeks to sue may do so and that essentially bars any other rights holder for infringements that occurred up until that point from suing. And then the liability can be renewed after that point but and then there’s commercial infringement where the range is significantly larger it’s between five hundred and twenty thousand dollars on a per infringement basis and there’s no same first a court rule there. Now in most of these cases these would almost certainly all be non-commercial infringements. I think there are some arguments as to whether a landlord who supplies internet is make renders it a commercial infringement and I’m sure that the plaintiffs will make that argument but the case on that is not settled at all either. So certainly for the overwhelming majority of people who receive these statements have claimed their maximum liability almost certainly going to be capped at five thousand dollars. And frankly that would be a pretty high damage award for something like this.

Michael Geist:
Ok so so not something that anybody can ignore, but on the non-commercial side the range is hundred dollars at the low end five thousand dollars at the highest end but it sounds unlikely or at least would be unusual to see a judge in a single case go for five thousand dollars. But of course this hasn’t been tested yet.

James Plotkin:
Correct. It could. It could happen. But again this is not the sort of financial liability where people have to you know start selling their belongings here. That’s that’s not the issue. But but it is a real court action and it’s not something to be ignored in my view.

Michael Geist:
James thanks so much for joining me on the podcast.

James Plotkin:
My pleasure.

Michael Geist:
That’s the Law Bytes podcast for this week. If you have comments suggestions or other feedback, write to lawbytes.com. That’s L.A. W B Y TE S at P.O. Box dot com. Follow the podcast on Twitter at @lawbytespod or Michael Geist at @mgeist. You can download the latest episodes from my Web site at Michaelgeist.ca or subscribe via RSS, at Apple podcast, Google, or Spotify. The LawBytes Podcast is produced by Gerardo LeBron Laboy. Music by the Laboy brothers: Gerardo and Jose LeBron Laboy. Credit information for the clips featured in this podcast can be found in the show notes for this episode at Michaelgeist.ca. I’m Michael Geist. Thanks for listening and see you next time.

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The post The LawBytes Podcast, Episode 10: Lowdown on Lawsuits – James Plotkin on Copyright Threats, Notices, and Lawsuits appeared first on Michael Geist.

Does Canadian Privacy Law Matter if it Can’t be Enforced?

Michael Geist Law RSS Feed - Thu, 2019/05/02 - 10:16

It has long been an article of faith among privacy watchers that Canada features better privacy protection than the United States. While the U.S. relies on binding enforcement of privacy policies alongside limited sector-specific rules for children and video rentals, Canada’s private sector privacy law (PIPEDA or the Personal Information Protection and Electronic Documents Act), which applies broadly to all commercial activities, has received the European Union’s stamp of approval, and has a privacy commissioner charged with investigating complaints.

Despite its strength on paper, my Globe and Mail op-ed notes the Canadian approach emphasizes rules over enforcement, which runs the risk of leaving the public woefully unprotected. PIPEDA establishes requirements to obtain consent for the collection, use and disclosure of personal information, but leaves the Privacy Commissioner of Canada with limited tools to actually enforce the law. In fact, the not-so-secret shortcoming of Canadian law is that the federal commissioner cannot order anyone to do much of anything. Instead, the office is limited to issuing non-binding findings and racing to the federal court if an organization refuses to comply with its recommendations.

The weakness of Canadian law became evident last week when the federal and British Columbia privacy commissioners released the results of their investigation into Facebook arising from the Cambridge Analytica scandal. The report details serious privacy violations and includes several recommendations for reform, including new measures to ensure “valid and meaningful consent”, greater transparency for users, and oversight by a third-party monitor for five years.

Facebook’s response? No thanks. The social media giant started by disputing whether the privacy commissioner even had jurisdiction over the matter. After a brief negotiation, the company simply refused to adopt the commissioners’ recommendations. As their report notes “Facebook disagreed with our findings and proposed alternative commitments, which reflected material amendments to our recommendations, in certain instances, altering the very nature of the recommendations themselves, undermining the objectives of our proposed remedies, or outright rejecting the proposed remedy.”

The federal commissioner has indicated that he plans to take the case to the federal court, where he will be forced to start from scratch by presenting sufficient evidence that Facebook violated Canadian law. Even with a successful claim, the law provides little in the way of penalties, with a newly established maximum of $100,000 for certain violations. By contrast, Facebook said last week that it has set aside US$3 billion in anticipation of U.S. enforcement penalties that could hit US$5 billion.

This is not the first time a major company has refused to comply with privacy commissioner recommendations. In 2015, Bell initially rejected findings associated with its relevant advertising program that would have required customers to opt-out of behavioural tracking. After an avalanche of negative publicity, it reversed its position.

With companies seemingly free to reject privacy commissioner findings – Facebook earns more than enough revenue every sixty seconds to pay the maximum PIPEDA penalty – Canadians are left without effective privacy protection. Innovation, Science and Economic Development Minister Navdeep Bains touted changes to the law that added new penalties, but the reality is that Canadian law now badly lags behind other countries.

The obvious solution starts with granting the Office of the Privacy Commissioner order making power and supplementing the law with penalties that would make companies think twice before ignoring PIPEDA.

The Office of the Privacy Commissioner was admittedly slow to recognize that the effectiveness of the law depends upon serious enforcement. In 2006, Jennifer Stoddart, then the federal privacy commissioner, told a House of Commons committee that order making powers were not a priority. A year later, it took federal court ruling to push a reluctant commissioner’s office to investigate foreign entities collecting personal information from Canadians.

Today, as global companies are on the verge of regarding Canadian privacy law as irrelevant and the European Union is increasingly likely to re-examine its decision to consider Canadian law “adequate” for the purposes of cross-border data transfers, the office has rightly become convinced that the law must be upgraded. That leaves the question of what more Mr. Bains and the government need to recognize that their vision of leadership in the digital economy is being undermined by privacy rules that leave millions of Canadians without effective and enforceable protection.

The post Does Canadian Privacy Law Matter if it Can’t be Enforced? appeared first on Michael Geist.

Myths and Reality About Canadian Copyright Law, Fair Dealing and Educational Copying

Michael Geist Law RSS Feed - Wed, 2019/05/01 - 09:10

Seeking to debunk many of the misleading claims on the state of Canadian copyright, fair dealing and education, I’m grateful that InfoJustice.org has published my post on the myths and realities of the current situation. The post relies on actual data presented at the recent copyright review to demonstrate how the Canadian market has experienced increased spending on licensing, e-book licensing has been a central part of the education licensing strategy, and educational institutions are paying for licences even when they retain collective licences.

The introduction notes:

Schools and universities are shifting to the use of digital resources – including to online E-reserves, E-Books and other forms of digital distribution. Collective (blanket) licensing, which for years has charged schools for making analogue reproductions of excerpts of printed works for use in printed course packs has declined in value and usefulness as education invests in digital licensing that offers enhanced access and reproduction rights. To facilitate the shift that benefits all stakeholders, legal rules must reflect emerging practices in which blanket licences compete in the market with alternative licensing models. One answer, represented by Canada, is a mix of broader copyright exceptions for the use of excerpts for educational purposes combined with a shift in educational spending toward buying and licensing more digital works and digital uses of works. The result is that educational spending on licensing in Canada has increased with exceptions and licences co-existing in a manner that provides appropriate compensation for authors and publishers alongside increased access and flexibility for educational uses.

The full post can be found here.

The post Myths and Reality About Canadian Copyright Law, Fair Dealing and Educational Copying appeared first on Michael Geist.

The LawBytes Podcast, Episode 9: The CRTC Watcher – A Conversation with FRPC’s Monica Auer

Michael Geist Law RSS Feed - Tue, 2019/04/30 - 07:30

Many Canadians follow telecommunications and broadcast issues at the CRTC from a distance – the cost of wireless services, the speed of their Internet access, the availability of broadcasting choice. Others engage more closely on issues such as net neutrality, Cancon regulation, or Netflix taxes. But there is one Canadian who doesn’t just follow the CRTC.  She watches it through the use of access to information laws that present a perspective on the CRTC that would otherwise remain hidden from view. Monica Auer, the Executive Director of the Forum for Research and Policy in Communications, joins the podcast this week to talk about insider access, slow reimbursement of costs for public interest groups, the number of CRTC meetings, and the Commission’s seeming indifference to commissioning original research. The interview is interspersed with comments from current CRTC Ian Scott taken from one of his first public speeches after being named chair in 2017.

The podcast can be downloaded here and is embedded below. The transcript is posted at the bottom of this post or can be accessed here. Subscribe to the podcast via Apple Podcast, Google Play, Spotify or the RSS feed. Updates on the podcast on Twitter at @Lawbytespod.



Episode Notes:

FRPC Policy 3.0 Conference (registration)

Credits:

CPAC, CRTC Chair Ian Scott Speaks About Internet Neutrality
FairPlay Canada Urges CRTC Action Against Online Theft

Transcript:

LawBytes Podcast, Episode9.mp3 | Convert audio-to-text with the best AI technology by Sonix.ai

Michael Geist:
This is LawBytes a podcast with Michael Geist.

Ian Scott:
This organization has a long tradition of being at the forefront of regulatory change. The many hundreds of men and women who have worked here since 1968 have adopted thoughtful creative, made in Canada approaches to deal with a vast array of complex regulatory challenges.

Michael Geist:
Many Canadians follow telecommunications and broadcast issues at the CRTC from a distance – the cost of wireless services the speed of their Internet access, the availability of broadcasting choice. Others engage more closely on issues such as net neutrality, Cancon regulation or Netflix taxes. But there’s one Canadian who doesn’t just follow the CRTC. She watches it through the use of Access to Information laws that present an insider perspective on the commission that would otherwise remain hidden from view. Monica Auer is the executive director of the Forum for Research and Policy in Communications. She’s been an analyst at the CRTC worked, for what was then Industry Canada obtained two law degrees worked at a major law firm and now heads up an organization that may not be widely known but has had a big impact on our understanding of what takes place behind the scenes at Canada’s telecom and broadcast regulator. This Law Bytes podcast episode features a recent conversation with Monica about insider access, slow reimbursement of costs for public interest groups,the number of CRTC meetings and the commission’s seeming indifference to commissioning original research. The interview is interspersed with comments from current CRTC chair Ian Scott, taken from one of his first public speeches after being named chair in 2017.

Michael Geist:
Not a lot of people are necessarily familiar with the forum. Maybe you can take a moment to introduce yourself and the forum.

Monica Auer:
The forum is a non-profit non soliciting federally incorporated organization which was established in late 2013 to undertake primarily empirical research and policy analysis with respect to broadcasting and telecommunications. Although there are other organizations out there that have also done this a number of them are are focused on a little bit more on the law and we’re trying to bring in more of the empirical evidence.

Michael Geist:
So who’s behind the forum.

Monica Auer:
I have a board of directors who are a wonderful theory are very experienced primarily in broadcasting but also some telecom. We have somebody who was formerly with the auditor general’s office so they’re very interested always in our budgets and the board decides whether or not we should participate in specific proceedings whether they’re before Parliament or the CRTC.

Michael Geist:
You’ve assumed this position as being the CRTC watcher. OK. You are the person, the forum is the place that surely launches a significant number of the access to information requests and is one of the few groups and you’re one of the few people I think that have the depth of knowledge of both the CRTC and the field to be able to take a look at some of the results. When you’re looking at what’s actually coming out of the CRTC and be able to understand and interpret them that’s I think he gets a really rare thing and it’s it’s a pretty amazing contribution because when you when you take a look at what’s on your site and the myriad of requests that you’ve launched over and over now many years it tells some pretty interesting stories that don’t typically capture people’s attention and but they think they should because they tell a really interesting story about the CRTC. So I was hoping to drill down a little bit on some of those. Starting I think with fair play.

FairPlay:
FairPlay Canada wants the CRTC to modernize the tools we use to protect Canada’s economy from online piracy we are proposing a tool similar to that used in dozens of other countries which empowers the CRTC to identify illegal piracy sites and disable them in Canada.

Michael Geist:
This was for those that aren’t familiar an issue that I was actively involved with as well Web site. A web web site blocking proposal led by coalition of groups. But it was particularly Bell it was was very active on it. You submitted on it I submitted on it. Thousands of Canadians actually submitted on it but the aspect that I thought we could focus on was an access to information request that you filed a little bit after the deadline or at least came back a little after the submission deadline.

Monica Auer:
I think it was a little bit after the deadline because we were all racing to meet the deadline and it was triggered by the fact that many people were reading the application and we were somewhat perplexed because we know many of the players involved many of the authors involved and they’re extremely competent they really know their business. And yet this application seemed a little different from the rest. It took an unusual approach to the entire issue which was a serious one. We actually did a survey of Canadians to find out what they thought about the idea of somebody like the CRTC being able to block their access and they were very concerned the majority the overwhelming majority was concerned.

Ian Scott:
As companies continue to innovate in their offerings to Canadians the CRTC will continue to ensure that Canada’s Internet neutrality provisions are respected. Just as the Transport Commission before us get railway lines open for any and all users. The CRTC has set a clear tone in its regulation of content delivery. The owners and operators of the country’s communication systems may not discriminate against content based on its origin or its destination.

Monica Auer:
So the more I thought about it the more I wondered about how the application came about and I wondered if there had been any chance that there might have been some discussion at the commission before the application itself was filed on January 29, 2018. And that’s why I filed the the Access to Information request.

Michael Geist:
And what did you find.

Monica Auer:
I got back two sets of information two packages of information setting out a number of emails and presentations and exchanges that appear to involve the CRTC and non CRTC personnel and I looked at it and I thought my goodness this is this is unusual I had not expected actually to see that in fact there had been meetings before the application is filed. I was unprepared for that I was also unprepared for the idea of what appeared to be a fairly extensive ex-parte communications if you will. Now it’s true ex-parte normally refers to a process something that’s already launched and then the parties discuss with the adjudicator outside of the other parties range. But in this case the CRTC is always in a position of judging things. So in that sense it might be considered ex parte. In any event I looked at that and I thought this is this is an interesting set of documents and I actually didn’t have time to look at. And that’s why I sent everything to you. I didn’t I wasn’t quite sure what could be done with that and the fact of the matter is that although we do have some people interested in our website and it does have some some kind of some fun things on it. I wanted to make sure that people would have as much access as possible to this because it speaks to the nature of informal contact between administrative authorities and society and those they regulate.

Ian Scott:
When any regulator the CRTC included performs its work in the name of the public interest. It must balance various points of view some of which obviously conflict. It’s not always appropriate to lean on one side of the fence or another in the interests of corporations or in defence of what the average Canadian needs or wants the public interest is much more dynamic than that.

Michael Geist:
The CRTC’s reaction was and Bell’s reaction for that matter was that there was nothing to see here. What are your thoughts.

Monica Auer:
I think there was something to see because if there were nothing to see there wouldn’t have been any documents. I think that there was something to see because being told that there is nothing to see is usually a pretty good clue that there actually is something to see and the fact of the matter is that everybody who read the documents knows there was something to see. So for all three reasons I can appreciate the perspective of those who didn’t want to have those things seen. But that’s not the case.

Michael Geist:
And do you think there’s something wrong with Bell being able to call up a CRTC Commissioner seeking the opportunity to present this – as I ask this question and you’ve got a big smile on my face because I feel a little rhetorical – but you know your thoughts on the power that companies have when they can quite literally in this case call up a CRTC commissioner ask for the ability to present something and then ultimately have the ability to meet with staff months before anything ever gets filed.

Monica Auer:
I guess the question is would anybody mind as long as the CRTC were equally open to all parties. Except that I’m aware of a number of non licensee and non telecom companies that call and they can’t get telephone calls returned from CRTC commissioners. So it seems to me when that’s a repeated pattern of behaviour there may not be so much of a level playing field. Secondly there’s no record of that as a general there’s certainly no public record of telephone conversations. And of course even though we can go through the commissioner of lobbyist registry and I think at one point I either have a blog in progress or a plan or a great deal material. The fact of the matter is is that the number of visits made by those who are beholden to the CRTC as licensees or those who are regulated meet regularly they meet weekly with the commissioners.

Monica Auer:
There are no records of those meetings in the sense of you know they’re not recorded. Do we want them recorded do we believe that it’s better for those who are making these decisions to be to be informed behind closed doors do we. Are we concerned that there might be an unusual quid pro quo. Just do this thing here and we’ll take care of that thing there. We don’t know and I think it places the commission in a very awkward position.

Michael Geist:
I think you’re right that that lack of balance or the uneven playing field I suppose may be part of the reason that we’ve got a cost awards system in Canada that’s designed to better facilitate the ability for civil society groups and other groups that are concerned with these issues to participate.

Ian Scott:
We invite indeed encourage stakeholders from across industry the government and the public at large to share their comments and opinions on the issues before us and we do so with a view to building as complete a public record as possible.

Michael Geist:
Can you start I guess by describing a little bit what that cost award system looks like and then I want to get into a little bit with some of your research has shown in recent years about how long it takes for certain groups to be paid off with those cost awarsds.

Monica Auer:
I think the cost awards process was initially effectively launched by the Public Interest Advocacy Centre. They participated in one of the first major telecommunications proceedings in the late 1970s. And for those of your listeners who may not know or those who are in the audience who may not know telecommunications was not always federally regulated. It was until the mid 1970s were like regulated in part by the provinces. And so it was only in the late 1970s that the CRTC itself had jurisdiction and then began to exercise control over it.

Monica Auer:
And so the question arose is how do you ensure that you you don’t just have the parties and then a number of interested members of the public who lack the ability to participate effectively. The issue is not that everybody can’t write the CRTC a letter. The issue is that you have a company like Bell who may have two or three hundred people working in their regulatory affairs department. And to put that in context the CRTC in its entirety has maybe 400 people not half of whom were devoted just to telecom. So what to do.

Monica Auer:
Even if you just assume that the CRTC could could address the public interest on behalf of the public interest there is no mandate within the CRTC act within the telecommunications act nor within the broadcasting act for the CRTC to put the public interest first. Secondly in a way the commission would be conflicted out. It would be like telling a judge well keep in mind what that person there are the defendant has to say and you look after the defendant’s interest. And now we want you to rule fairly. The other side will always have a concern.

Monica Auer:
So there was a cost process set up in the late late 1970s and it was 1979 through the through a draft rules of procedure noticed by the CRTC. And of course the very first cost award was taken to court went all the way to the Supreme Court. And fortunately the Supreme Court recognized the benefit of having non company participants involved. So this proceeded for many years in a in in an unusual kind of way. The CRTC commissioners would appoint a member of their staff to be a costs officer who would then adjudicate costs claims that became very time consuming and because it started to take so much time they decided to streamline the process and make it very fast so you could just apply and the commission staff would go over the application to make sure that it was appropriate.

Monica Auer:
So that was where that’s where the telecommunications process is right now. Applicants who appear who have met the terms of the CRTC’s cost policies apply to have some of their costs not all of them. Some of them reimbursed the broadcasting side. It’s somewhat different. The CRTC set up as a parallel organization but you don’t apply to the CRTC you apply to another party. The issue there is at the CRTC allocated money to this agency and it’s out of money. So in terms of broadcasting by next year perhaps there may be no money for public interest groups to participate.

Michael Geist:
The historical background is really valuable. It’s a system that least on paper seems like a really good. It seems like a great idea. Good to see the Supreme Court thought so too. You’ve been looking into the speed with which these cost awards get paid out because of course what happens based on what you’ve just described is that the public interest group will incur various costs of participation that could include retaining experts to provide further evidence to the CRTC and after it’s done as you mentioned you submit your bill and the CRTC reviews. What did your research find about how long it’s taking in a sense to get paid back for those expenses.

Monica Auer:
The average is nine months and what an average means is that there are some cost claims that are taking two years. Some are taking three years not many but some. To put that into context when the CRTC when I when I I looked at the cost awards from 2013 through to 2018. So that was 182 of them just to look at the time of filing for instance and then the actual date of the decision. And in 2013 for the entire year it took a little over three and a half months for the CRTC to receive the application. think about it and issue a decision. Now it takes nine and a half months.

Michael Geist:
Okay so I was pretty quick. Just a few years ago.

Monica Auer:
Yes.

Michael Geist:
Talking nearly a tripling based on what you just said on average do we have any idea why is the CRTC said anything about why it’s taking so much longer to process this because now we’re talking about organizations that can wait a year or two as you say perhaps even three years to get paid back for money they’ve spent on many of these organizations are not deep pocketed organizations that can in a sense afford the float of having all these accounts receivable outstanding.

Monica Auer:
Yes. And just to address that before I address the other point some people have have suggested well why didn’t you just save money so that from one year to the next you can go. But the fact is that if if I retain an economics expert the economic expert needs to be paid I can’t take that person’s money and then hold it for the next one. It’s not a Ponzi scheme it’s as you have a bill you have to pay it.

Monica Auer:
So to think about why it’s taking so long. I have noticed myself that with respect to the forum’s applications and bearing in mind we started making. I think we made our first application in 2014 and the first one sailed through and sailed through in the sense that nobody objected because the Commission has adopted a practice where they take every application that we make or that any party makes in fact and then they send it to the telcos and telcos have the right to reply. And I find that the certainly the depth and length of the replies has gotten longer and the arguments made are not changing. In other words every time it seems we while you’re not a lawyer. Actually yes I am. You’re not doing legal research. Actually yes I am. You didn’t incur those costs. Well the invoices are there you know. Yes we did.

Monica Auer:
And then while you didn’t contribute anything to the process well that’s up to the CRTC and in fact this is what we did. We did a survey we did economic research. We did charts. We did graphs. We did 150 pages with you know four gazillion footnotes. Actually we did. We think we contributed. So it’s up to the CRTC. And so it would be interesting as well if you remember that the costs that were paid haven’t changed since 2010. In other words the rates that we may charge have not increased in the last nine years and that’s not an issue except when people might think well you’re just going to pad your bill to make. Well we can’t because you know that darn ethical code to which you swear when you become a lawyer. They they require you to follow the rules. You can’t just pad, you live with it and that’s fine. It’s just then you have to carry the bills. And it’s not even you know. Okay. So I own my own house. I don’t have to pay rent. That’s terrific. But you know other people do and other people have office rents. And when we hire a survey company do they really want to wait a year to get paid. That’s so. So how do you ensure that you can have a strong public presence on a level playing field when we don’t have the resources and we can’t. And it’s ultimately we can’t get paid. It’s just I think the commission used to be able to do it quickly. It’s unclear to a number of us why it’s still taking so long.

Michael Geist:
So that’s unclear. One of the other things that you’ve been focusing on is how frequently the commission meets. I don’t know if it’s I don’t know if there’s a connection or not. But that piece of research which is quite recent is extensive in taking a look at just the number of meetings that the CRTC is having maybe you can just start by introducing what it is that you asked for through the access to information system and what did you get back?

Ian Scott:
The job before us as commissioners is to weigh whether times can be contrasting ideas. On the one hand business has its own interests to present and defend it must answer to its shareholders and maximize returns on investment which is entirely appropriate. It’s not business’s duty to always promote the public interest.

Monica Auer:
I thought that when I asked how often is the CRTC meeting I would get back maybe an Excel spreadsheet with just the dates of the meetings. That’s what I thought I would get and then I would just play with that and I say oh look you know they’re meeting the same and more or less. And the reason I asked was because I was wondering could it possibly be that they’re not meeting as much these days and that might be slowing things up and I should preface this by saying that when I worked at the commission, the full commission was regularly in the building every month that seemed to me or every second month there would be a meeting of the entire commission which at that point was not just the ninth night not just the 13th I think was 13 full commissioners but then another up to 15 part time commissioners a lot of people. All right. So I asked the commission for a list of the meetings, the dates on which the commissioners met, and the agendas of the meetings and I thought you know one page agenda. Right.

Monica Auer:
So I received I received a scanned PDF of each month of the year from January 2007 to December 2018 and on many of the days there was a little notation as to what the meeting might have been about. And sometimes it was telling you that there would be no power in the CRTC’s buildings over the weekend which is a regular occurrence. And I found out of the hundred and fifty one pages of calendars once they input all of the data I was looking at 3000 or so meetings from 2007 to 2013 and the interest the most interesting thing I was surprised that the total number of meetings of the CRTC whether the full commission its committee telecom committee any of those panels had decreased by a third over the period.

Michael Geist:
Okay so that the very time when these issues are becoming more front and center it feels like there’s almost a continuous cycle of hearings and issues and re-examination of both telecommunications related issues, wireless issues, broadcast issues. The commission is meeting less as opposed to more.

Monica Auer:
It is meeting less and it is often meeting without any agendas. Roughly a quarter of the meetings happen without an agenda and and a a cynic might say well there’s no agenda because then you can’t ask for the agenda and access to information you can’t get what isn’t there. But I think the more interesting question is what do commissioners if they’re on this mailing list and they’re invited to attend a meeting. What do commissioners do who don’t have a copy of an agenda? Do they have any documents to go with it? Is the commission not thinking that a document that sets out a problem is part of the agenda? I don’t know what it is I’ve asked. The agendas didn’t accompany the calendar pages that is going to take somewhat more time and I’ll see what we get then. As for the the meetings themselves I think the other thing is that when we think of the meeting I was very broad and apparently the commission was too because what they also sent me showed that roughly two thirds of these meetings are done by email. And when you and when you look at what you counted as a meeting I don’t I don’t know.

Michael Geist:
An email exchange is a meeting?

Monica Auer:
I don’t know it would say for instance the notation might be BCMEM broadcast committee meeting email and this was on their list their calendar page showing all of these meetings but and even for the email meetings they decreased in number, the in-person meetings decreased in number, and the email meetings decreased in number over time that’s it.

Michael Geist:
It’s counterintuitive to one what one might think. The other thing that’s somewhat counterintuitive when you take a look at the work you’ve been doing has to do with the number of requests that once again there is no information. So you mentioned there were no agendas in this instance you’ve asked for some really interesting things that one would have thought the commission might have spent some time digging into and consistent with the approach the forum has about where’s the evidence and trying to bring forward the evidence.

Ian Scott:
When this commission makes its decisions it does so based only on the facts it has at its disposal. We depend on the public record to inform the choices we make. And when that record is fully developed and rich with information that the decisions we take are strongest and most supportive of the public interest.

Michael Geist:
I was taking a look at the list I know that you’ve asked about things like how many journalists jobs exist in the country, the impact of foreign investment rules with respect to broadcast, the number of news bureaus in radios radio stations and television stations, studies on any number of different issues that the CRTC has been engaged in diversity of voices balance and news deregulation in advertising and what the common link between all of these issues and requests is at the CRTC said they had absolutely nothing.

Monica Auer:
No records.

Michael Geist:
So just for those that don’t regularly file access to information requests, a no record means that the CRTC says…

Monica Auer:
They they have no information. And when I make an access to information request I try I try for everything. I thought it was unfair to the commission just say Hey I’d like any records about. So I thought I would clarify it. Well perhaps you might have written a memo or an email or you might have had a research study or or a briefing or a presentation. I tried to come up with as many synonyms as I could. And those would count as records under Access to Information case law. And I think they’re all surprising in that you know the very first section of the Broadcasting Act for Canada’s broadcast. Parliament’s very first statement in its broadcasting policy for Canada is that the Canadian broadcasting system shall be effectively owned and controlled by Canadians. And yet when I asked do you have any information on voting shares. I say well we don’t collect it like that. If you want to go to each of the ownership charts that we maintain on our website you can see the non Canadian voting shares there. But those charts are only current. They’re not historical. So if I want to see if there’s any kind of change over time the level of foreign ownership. I can’t. Nor does it easily represent equity which can be a form of debt. It can be a loan we don’t know what it is but it’s not a voting share can be a non-voting share. No information as well and an overall I think a number of people like Dr. Winseck for instance at Carlton have pointed out that Canada has one of the highest levels of concentrated ownership in the communications sector in the world. So it was puzzling to me that the commission has no research on this hasn’t undertaken any studies hasn’t hasn’t commissioned any studies has no information on the impact of concentrated media ownership either in broadcasting it’s bizarre to me.

Michael Geist:
So what do you think that says about the CRTC I know for example that the broadcasting and telecommunications legislative review panel which is ongoing and for which we should get at least an interim report by the summer has itself commissioned a series of different research reports that was the subject of someone else’s access to information requests. So it recognized as it embarked on its review that generating more evidence and conducting some studies was a natural byproduct of being a natural byproduct being actively involved in a comprehensive study and the CRTC would appear based on the requests you’ve made very often seems content to just rely on what it hears from people who submit as part of hearings. Is that what we’re led to conclude?

Monica Auer:
I think it’s not just a conclusion it’s the fact. You’ll recall that we had the basic service obligation proceeding about four years ago five years ago. I was invited along with many other people to the lockup and we were you know if we wanted to ask questions of the senior staff we could and so I said you know you’ve said X here referring to evidence. Could you tell me what research the commission itself undertook or bought about the telecommunications sector for this enormously important review. They said well we didn’t do anything. We had the evidence before us.

Monica Auer:
Well who can afford to do the wonderful types of evidence that they need a good economic study because economists are valuable people and their time is valuable could cost you thirty thousand dollars forty thousand dollars to put it in context a good survey if you can’t analyze survey research results yourself and I am able to because of that otherwise not necessarily very useful undergraduate and graduate degree in political science although I really liked my alma mater there was an excellent university Carlton. A good survey research study might cost with this with the survey included forty thousand dollars. Who has that money. The public interest side and if the commission isn’t undertaking it are they actually relying on public interest groups to come up with these data. And if they are then again the cost order process is not assisting in ensuring that we we can do this. Should the commission be doing more? I think yes. The Commission not only should but of course it could. It has enormously well qualified people. Its rules of procedure specifically state if you’re going to intervene in our proceedings please give us evidence.

Monica Auer:
All right then I think the commission has a duty itself to ensure if it wants to meet its own mandate, if it wants to ensure that it is actually acting properly as Parliament’s delegate I think it has a duty to explain how that’s happening.

Michael Geist:
So that there is a real stream continuity with many of these requests and the findings really really identify a lack of evidence that at a certain level relies upon public interest groups to generate at least a counterbalance to what the commission might hear from more commission by some of the established players and yet there’s challenges to get paid back for some of that. There’s questions about how much the commission is actually meeting on any of these issues. In any event and when they do meet it turns out some of the meetings that they have are these off the record meetings such as the one that we saw in Fairplay raised a lot of concerns. I assume that some of these are the kinds of issues that may be addressed in a forthcoming conference that you’re putting on that examines policy and communications law in Canada. Can you tell us a bit about that.

Monica Auer:
Thank you for allowing me to make my little pitch. We’re holding a conference at the University of Ottawa itself here May 10th May 11th. The focus of the conference is with the proposals that have been made to amend Canada’s broadcasting and telecommunication statutes.

Monica Auer:
As you as you know not many of these submissions that were made to the legislative review panel on January 11th have been made public. We’ve we have a number of people have kindly mentioned to us or they’ve given us consent to post their interventions and so we have I think 57 at this point on our website. And so as we were as I was beginning to look at those and as I was discussing with my board it became clearer that more and more people were interested in having at least an opportunity to discuss what these proposals are and what the implications are and what the new statutes if there are any ought to look like. So we’ve invited a number of interesting people who are going to come and deal with a number of different aspects of of broadcasting and telecommunications in the in the sense of the rights and responsibilities. There are a lot of rights in in both the Telecom Act and the Broadcasting Act and there are also responsibilities both from the corporate perspective and from the audience perspective. It’s not enough just to complain about things you have to be able to prove things and so we’re looking at things like of course whether or not you know we have a duty to to fund and to properly operate a national public content provider which today we call a CBC whether we have actually a right to exercise control over our own communication systems within our borders given the Internet what do we do. Are we going to exercise jurisdiction over Google Facebook Youtube what do we do with that. Or is the era of national control over our borders effectively gone.

Monica Auer:
Do we have the right in an era of fear not so much fake news but news that can be manipulated. Do we have the right to ensure that people can be informed so that they can exercise their democratic credit franchise. And so we have lots of fun people for instance the former chair of the commission Konrad from Finkelstein has kindly agreed to come we have Bram Abramson and formerly of TekSavvy, Janet Lo currently with TekSavvy, we have Brad Danks from OutTV who is an amazing thinker for a lawyer. He’s actually taken a long-term perspective as to what the future of the system might be and I think his company is very much engaged in and working with the new realities they have. We have Tim Denton, Suzanne Lamarre both former CRTC commissioners John Langford from PIAC. We would have invited you except that you won’t be in Canada that time. And so in your stead we’ve invited Dr. Dwayne Winseck because to some extent he has a similar viewpoint in that he is not necessarily as as bound to the Broadcasting Act as I am. And so we’re hoping that he will stimulate conversation with people from ACTRA, DTGC. It should be a lot of fun.

Michael Geist:
Well thanks so much for joining us on the podcast.

Michael Geist:
Thank you very much for inviting me.

Michael Geist:
Policy 3.0. The FRPC upcoming Communications Conference takes place at the University of Ottawa on May 10th and 11th. There is a link to the conference registration page at Michael Geist.ca.

Michael Geist:
That’s the Law Bytes podcast for this week. If you have comments suggestions or other feedback, write to lawbytes.com. That’s L.A. W B Y TE S at P.O. Box dot com. Follow the podcast on Twitter at @lawbytespod or Michael Geist at @mgeist. You can download the latest episodes from my Web site at Michaelgeist.ca or subscribe via RSS, at Apple podcast, Google, or Spotify. The LawBytes Podcast is produced by Gerardo LeBron Laboy. Music by the Laboy brothers: Gerardo and Jose LeBron Laboy. Credit information for the clips featured in this podcast can be found in the show notes for this episode at Michaelgeist.ca. I’m Michael Geist. Thanks for listening and see you next time.

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The post The LawBytes Podcast, Episode 9: The CRTC Watcher – A Conversation with FRPC’s Monica Auer appeared first on Michael Geist.

The LawBytes Podcast, Episode 8: LawBytes Lecture – What the Canadian Experience Teaches About the Future of Copyright Reform

Michael Geist Law RSS Feed - Mon, 2019/04/22 - 09:05

Earlier this spring, I delivered a keynote address at the Australian Digital Alliance’s 2019 Copyright Forum. The ADA is a leading voice on copyright issues in Australia and its annual Copyright Forum brings together government, creators, education, libraries, and the broader public to explore copyright issues. Coming off a holiday weekend with many celebrating Easter or Passover, this week’s Lawbytes podcast takes a different approach with a Lawbytes lecture, an audio recording of the ADA keynote, which used real data to dispel the misleading claims about the impact of Canada’s copyright 2012 reforms.

The podcast can be downloaded here and is embedded below.  Subscribe to the podcast via Apple Podcast, Google Play, Spotify or the RSS feed. Updates on the podcast on Twitter at @Lawbytespod.

 

Episode Notes:

YouTube video version of the ADA keynote address

The post The LawBytes Podcast, Episode 8: LawBytes Lecture – What the Canadian Experience Teaches About the Future of Copyright Reform appeared first on Michael Geist.

My ADA Keynote: What the Canadian Experience Teaches About the Future of Copyright Reform

Michael Geist Law RSS Feed - Wed, 2019/04/17 - 09:10

In late March of this year, I travelled to Canberra, Australia to deliver a keynote address at the Australian Digital Alliance’s 2019 Copyright Forum. The ADA is a leading voice on copyright issues in Australia and its annual Copyright Forum brings together government, creators, education, libraries, and the broader public to explore copyright issues. This year’s event included innovative film makers, the President of the Australian Society of Authors, European Parliament MEP Julia Reda, as well as leading academics, trade negotiators, government policy experts, and many others.

My talk focused on the Canadian copyright experience, using real data to dispel the misleading claims about the impact of Canada’s 2012 reforms. A video of the keynote has been posted to YouTube and is embedded below.

The post My ADA Keynote: What the Canadian Experience Teaches About the Future of Copyright Reform appeared first on Michael Geist.

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