Digital Expression

The Internet has evolved as an engine of unprecedented creativity and expression. However, there are no guarantees that the underlying features of the Internet which are responsible for this burst of innovation and expression will continue to persist. These conditions are under significant stress from laws, lawsuits and technological innovations, and it is important to ensure developments in law and policy do not overwhelm important expressive activities and potentials.

Litigation

CIPPIC joined in an intervention (FR) which highlights the negative impact on freedom of expression that can result if the Court of Justice of the European Union endorses global content de-referencing orders. The regulatory action under appeal in C-507/17, Google Inc v Commission Nationale de l'Informatique et des Libertés (CNIL), arise from an order issued by the French data protection authority (CNIL) which would compel Google to extend its de-referencing of content to protect the privacy of Spanish citizens beyond google.fr. Content removal or de-referencing orders of this nature have the effect of leveraging the global reach of central online intermediaries such as Google in order to apply one nation's laws to the entire world. As a result, other states lose the ability to establish their own standards with respect to critical questions such as, in this instance, addressing the balance between the right to privacy and to freedom of expression.

The specific type of content de-referencing order at issue in Google v CNIL seeks to protect the privacy of individuals by de-referencing their names from certain online articles: when someone searches for 'Alice Dubois', the first search hit that results will no longer be an account of Ms Duboius' 14 year old debt security proceedings. Ms Dubouis can retain some measure of control over how she represents herself to her employers, colleagues, friends—the world. However, in formulating such a right, great caution must be taken to ensure the right balance is struck between the need to protect individual's privacy and the public's right to receive information. Can professionals use this right to remove negative reviews of their products or services? Can those repeatedly convicted of fraud shield their convictions from future perspective customers? Does this right of de-referencing apply to all types of content or just prominently referenced articles that display sensitive information (an individual's sensitive financial information or health condition, for example)? The intervention (which was led by Article 19 and draws on the experience of co-interveners from Canada, Korea, Latin America, the United States, and Member States of the EU) argues that states must be allowed to balancing the important constitutionally protected interests at stake in such questions for themselves, rather than having the question determined by globally applicable content de-referencing orders.

Image credit: Tyler Menezes, "The worst thing about censorship", June 27, 2008, CC-BY-SA 2.0, Flickr

CIPPIC Director David Fewer was joined by his co-counsel Professor Marina Pavlovic and Professor Jeremy de Beer to provide the Supreme Court of Canada with argument in its intervention in Haaretz.com, et al. v. Mitchell Goldhar, Professor de Beer did an excellent job addressing CIPPIC's argument, which focused on access to justice, forum shopping concerns, and technological neutrality.

Students Lora Hamilton and CIPPIC intern Adam Soliman provided CIPPIC with outstanding support throughout the intervention, and were able to attend the hearing.  Great job, team!

CIPPIC contributed to Citizen Lab's submission to the United Nations Special Rapporteur on violence against women, its causes and consequences, Dubravka Šimonović, who is seeking best practices for addressing technology-facilitated violence, harassment and abuse against women. The submission highlights the need to acknowledge the real-world harms that flow from technology-facilitated abuse—harms which are too often disregarded or trivialized. The atmosphere created by such abusive conduct operates at to exclude women and girls from critical digital spaces, can have professional consequences and can leverage technical capabilities to wage long-ranging and persistent harassment campaigns. Often, technology-facilitated abuse does not, however, fall neatly within existing causes of action or criminal prohibition, which poses a challenge for those seeking to leverage legal powers to find relief from such abuse. The online platforms on which technology-facilitated abuse too often plays out present an equally challenging landscape for women and girls facing online abuse. Voluntary mechanisms adopted by these platforms to address online abuse are opaque, highly inconsistent, and continue to fail those who attempt to rely on them. Other private actors compound technology-facilitated abuse of women by actively feeding a robust commercial stalkerware market that facilitates violent and harassing conduct and allows for pervasive surveillance of women by abusive partners. Citizen Lab's submission can be read at: https://citizenlab.ca/2017/11/submission-un-special-rapporteur-violence-women-causes-consequences/

CIPPIC has helped organize letters from over 40 prominent individuals and organizations supporting Chelsea Manning's legal team in its bid to reverse her refusal of entry into Canada. As CIPPIC points out in its own letter of support, the whistleblowing activities which formed the basis for Ms Manning's sentence in the United States have been integral to debates surrounding many matters of public interest—including a casual disregard for civilian life in the Iraqi and Afghanistan wars and a program of extra-judicial assassination targeting senior Taliban and Al-Qaeda officials. These disclosures could not be shown to have caused any direct damage, and Ms Manning's sentence for her crime of conscience has since been commuted by former US President Barack Obama. Refusing Ms Manning entry into Canada on the basis of her conduct is an injustice that should be reversed. The campaign was spearheaded by independent researcher Lex Gill. CIPPIC's letter can be read here: https://cippic.ca/uploads/20171012-LT_GoC_re_Chelsea_Manning.pdf

Image credit: CC-BY 2.0, Jackie: Flickr

CIPPIC has filed its factum in Haaretz v Goldhar, an online defamation matter before the Supreme Court of Canada addressing the question of jurisdiction for online expression accessible over the internet in Canada.  CIPPIC's factum focuses on the role access to justice and forum shopping considerations play in judicial decisions on jurisdiction.  Professor Jeremy de Beer and Marina Pavlovic crafted our argument.

CIPPIC attempted to intervene in Equustek Solutions Inc. v. Google Inc., an appeal from an order of the British Columbia Supreme Court that addressed the use of innocent third party intermediaries (in this instance Google) as rights enforcement tools. The decision set a new standard for when such intermediaries can be used as enforcement tools, as well as with respect to the global reach of resulting enforcement remedies. It involved an order mandating Google to remove access to content not just from its Canadian sites, but globally, in effect imposing Canadian law onto the world. The impact of this ruling, if upheld, is far-reaching. In its application to innocent third parties who have done no wrong, it places Internet intermediaries (entities such as ISPs, search engines, websites hosts, social networking sites, domain name registrars - the infrastructure of the Internet) at the disposal of any party looking for a shortcut to enforcing its rights. This case involved a trade secrets dispute, but it is clear this new takedown/censorship power is intended to be of general application and will be available in copyright disputes, defamation disputes, or any other lawsuits.

Second, the global reach of the order is similarly problematic. The actions in question may well have contravened Canadian trade secret laws, but this cannot be presumed to be the case for all jurisdictions around the world. More importantly, the court held that jurisdiction over Google is equivalent to jurisdiction over the intermediary's global activities in spite of the fact that 95% of its Canadian search traffic occurs through the google.ca portal. As a matter of comity, issuing such an order implies that a Canadian court must respect a similarly constituted foreign order (and, by extension, that foreign courts are encouraged to issue similarly constituted orders). This will mean, in effect, that Canadians could well be deprived of access to content that is legal under Canadian law, but not under foreign law. It will be left to Canadians to then go to foreign courts and attempt to seek an exemption for Canada - a costly process that is unlikely to be undertaken with any degree of regularity. CIPPIC was denied intervention status.

The Internet has provided the public with an unprecedented ability to communicate and share ideas while keeping their identities private. Anonymity, or the ability to conceal one's identity, has opened the door to much freer communication than would otherwise be the case. Those who fear persecution, ostracism or embarrassment are able to communicate about topics and in ways they would not risk otherwise.

Filtering has been a hot topic in the public library community since web access first became a service provided to patrons. Those in favour of filters claim that they are an effective security measure that keeps out unwanted content and does not impact on users in any detrimental way. Those opposed to filters cite instances when legitimate research material has been blocked by filters and argue that it is an excessive measure that harms more than it helps.

As an inexpensive and accessible medium of worldwide communication, the Internet offers individuals unprecedented new opportunities to publish and share information and opinions. Messages posted on websites or in discussion forums have a potentially vast audience, and can be replicated almost endlessly. This means that defamatory statements published on the Internet can have wide repercussions for affected individuals or corporations.

National Post/Warman v. Fournier, Federal Court of Appeal, File Nos. A-394-12 & A-395-12

Crookes v. Newton, 2011 SCC 47, (Defamatory liability for hyperlinking)

Warman v. Fournier, 2010 ONSC 2126, [2010] 100 O.R. (3d) 648, 319 D.L.R. (4th) 268 (Ont. Div. Ct.)