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CIPPIC Director Vivek Krishnamurthy highlighted the risks that Bill C-11 poses to the right to free expression in Canada and beyond in his testimony before the Senate Standing Committee on Transport and Communications on October 18, 2022. By extending Canada’s incredibly broad definition of “broadcasting” and “programs” to practically all audiovisual content online, subject only to the weak and confusing exceptions for “social media”  provided by s. 4, Bill C-11 provides an ideal template for authoritarian governments to emulate in regulating social media content for their own ends. Bill C-11’s provisions in this regard are especially problematic since they are tied to measures that seek to promote what the government defines as “Canadian content” on social media services. The danger of such a regime in the online sphere is clear to see as increasingly authoritarian countries like India seek to strip members of minority communities of their citizenship rights. Krishnamurthy’s Senate testimony is available to view on the Parliamentary website.

Professor Jane Bailey offered submissions on behalf of CIPPIC at the hearing of R v Downes, an important voyeurism case. This issue before the Court involved the interpretation of the "place" provisions of the Criminal Code's prohibitions against voyeurism. These provisions protect Canadians against surreptitious observation and recording when we have a reasonable expectation of privacy and are in “a place in which a person can reasonably be expected to be nude...”.

Voltage Holdings, LLC V Doe#1 et al, 2022 FC 827, saw the first time a plaintiff in a Canadian copyright filesharing action sought a motion for default judgment against dozens of defendants. Voltage is no stranger to copyright litigation. The American film production company has been the plaintiff in numerous copyright infringement lawsuits around the world. These cases concern unauthorized online sharing of Voltage’s films by unidentified defendants. Voltage often opts to sue internet subscribers who were suspected to have unauthorized copies of Voltage’s films shared through their home networks, even if the subscriber and the person who shared the unauthorized copies were not necessarily one and the same.

In this case as in others, Voltage had taken no steps to identify the alleged direct infringers. Instead, the defendants were internet subscribers that Voltage found using their IP addresses, through information provided to them by ISPs via a Norwich order. These defendants had not responded to Voltage’s previous communications regarding the alleged infringements and had filed no defense. Voltage sought to obtain statutory damages for infringement through a default judgment.

As the last few remaining NHL teams battle their way towards the Stanley Cup finals, the Federal Court has ordered Canadian ISPs to begin blocking NHL game streams accused of violating copyright Friday. While Canadian courts have previously recognized the availability of static website blocking (despite CIPPIC's objection), this order is the first of its kind in Canada, as we argued in our intervention. It implements a sophisticated system that relies on a private company to identify allegedly unauthorized streams using automated assessment tools and report these to Canadian ISPs for real-time blocking, and represents the next step and the never-ending expansion of remedies demanded by copyright holders in Canada.

The order adopts a number of safeguards. It will only operate during the remainder of the playoffs, where there are fewer games to monitor and less opportunities for over-blocking. The Court also ordered an independent expert to audit the website blocking initiative. The independent audit will provide critical evidence that will be critical when courts are later asked to extend this remedy. Specifically, if Rogers, Bell, and the other media companies who applied for this order wish to extend its application beyond the 2022 playoff season, the independent audit will need to establish that collateral blocking of legitimate content was minimal and that the blocking was effective in actually increasing legitimate subscriptions rather than simply driving customers to other forms of infringement or adoption of VPN services.

Image source: Stanislav Lvovsky, "Censored", Flickr, September 28, 2015, CC-BY-NC-ND 2.0