News

  • - 2020-07-25 -

    The Federal Court granted CIPPIC leave to intervene in a Reference, FC File No T-1779-18, that could have wide-ranging impact on the scope of protection offered by PIPEDA, Canada's primary federal privacy law. The Reference questions whether core features of the digital economy will continue within PIPEDA's jurisdiction.

    PIPEDA, Canada's premiere e-commerce privacy legislation, primarily applies to data processing carried out in the course of 'commercial activity'. The arguments advanced in this Reference would exclude platforms such as Google and Facebook from PIPEDA's protection on the basis that data collection of user-generated activity such as search querying or clicking on social media posts on Facebook does not constitute 'commercial activity'. Yet many e-commerce platforms are explicitly designed to maximize data collection from user-generated activities as the primary core of their commercial enterprise. These platforms regularly offer services at low or no cost as a means of incentivizing user activity on their platform, specifically so the data created by that activity can be collected and monetized. As this business model is endemic throughout the digital economy, the proposed definition of PIPEDA could have far-reaching implications for privacy in Canada. In its proposed intervention, CIPPIC will argue that this outcome ignores the text and purpose of PIPEDA, which has been described as 'consumer protection legislation for the digital age'.

    Image Source: Learntek, "big-data-analytics", April 23, 2018, Flickr, CC-0 1.0

  • - 2020-07-17 -

    CIPPIC and OpenMedia filed comments calling on the CRTC to adopt robust regulatory measures necessary to reverse Canada's broken mobile ecosystem. Canadian mobile service providers such as Bell and TELUS extract some of the highest revenues in the world, and the correspondingly high retail costs have prevented Canadians from realizing the full potential of mobile connectivity.

    As our submissions to this proceeding painstakingly document, Canada's mobile retail costs are prohibitively high by global comparative standards. Canadians pay more per GB of mobile data than almost any other OECD or EU country. The amount of revenues Canadian mobile providers extracts from each customer is also world leading, and this impacts heavily on Canadians, who do not make full use of their mobile devices or are priced out of mobile connectivity altogether. On that front, Canada has fewer mobile subscribers on a per capita basis than the vast majority of OECD countries, and Canadians use barely one half the amount of mobile data as the average OECD country. Canada continues to fall further behind in terms of both adoption and data usage.

    These trends have been indicative of the Canadian mobile market for years, and a robust regulatory response is required. In our final comments to this proceeding, we call upon the CRTC to mandate a wholesale regime that would allow Virtual Network Operators (MVNOs) to provide mobile connectivity over incumbent service providers networks. This will allow for an infusion of competition, while ensuring that incumbent providers are well compensated for the use of their networks. CIPPIC and OpenMedia also called on the Commission to mandate affordable mobile plans with at least 4 GB of monthly data.

    Image Source: Falcon Photography, "The New Golden Xperia Z5", Flickr, March 15, 2016, CC-BY 2.0

  • - 2020-07-08 -

    USMCA Report CoverCIPPIC and the Harvard Cyberlaw Clinic are excited to release a report today on the impact of the new United States-Mexico-Canada Agreement (USMCA) on intermediary liability laws in North America. Click here to download the report.

    Article 19.17 of the new USMCA contains provisions modeled on Section 230 of the U.S. Communications Decency Act that protect platforms like Facebook and Google from being held liable for harmful or unlawful content posted by their users. While the liability shield the USMCA provides is quite similar to CDA § 230, the provisions differ in that the USMCA permits courts to order injunctions requiring platforms to take down content.

    Given the ongoing debate in the U.S. regarding the future of CDA § 230, our report suggests that the USMCA’s approach to intermediary liability could serve as a model for amending CDA § 230, given the balance the USMCA strikes between addressing online harms and protecting platforms.

    Our report also outlines how current Canadian intermediary liability laws are inconsistent with the USMCA, as are some recent proposals advanced in Canada to hold social media companies liable for the content they host. Correspondingly, we recommend that careful consideration be given by federal and provincial parliamentarians to introducing legislation to align Canadian law with the USMCA, and that clarifies whether Canadian and third-country intermediaries are entitled to the protections provided by the USMCA.

    Our report is the product of an unprecedented cross-border collaboration between technology law clinics in Canada and the United States on a legal issue of significance to citizens of both countries. We hope to expand the coverage of our report to include Mexico in the near future.

  • - 2020-07-06 -

    CIPPIC was granted leave to intervene before the Federal Court of Appeal in Teksavvy Solutions Inc v Bell Media Inc, FCA File No A-440-19, an appeal of an order compelling Canada's ISPs to block access to a website accused of copyright infringement. The order under appeal is novel, and if approved will have far-reaching implications for free expression and balanced copyright, creating an extraordinary new censorship power that the applicants have sought in trade negotiations, at parliament, and at the CRTC, without success.

    The intervention order itself adopts a thoughtful, but decidedly novel approach in its application of the Federal Court of Appeal's uniquely rigorous test for public interest intervention. As set out in CIPPIC's initial motion to intervene, dated February 3, 2020 (paras 5-12) and affirmed by the case management judge in a brief and pointed direction dated April 24, 2020, the test for intervention requires extensive coordination among different public interest interveners to avoid duplication. In light of the interveners' demonstrably successful efforts to coordinate, the Court took the exceptional step of merging many of the parties, allowing CIPPIC to file a joint intervention with our close colleagues at the Canadian Internet Registration Authority (CIRA). The British Columbia Civil Liberties Association (BCCLA) was also granted leave to elaborate on its detailed proposed submissions regarding the need to account for freedom of expression when issuing orders that interfere with access to expressive content. The intervention order is also innovative for its willingness to depart from a categorical approach to classifying proposed interveners, and instead consider the particular characteristics of specific parties and their historical record of intervention. This allows for a more thoughtful and contextual approach to granting intervener status, while interveners will need to be more cautious in implementing the Court's conditions of intervention or risk developing a negative track record and threatening future interventions. Three other parties seeking to intervene on behalf of intellectual property rights holders were also granted leave to intervene, and merged into a single intervention. CIPPIC is represented by Alyssa Tomkins and James Plotkin of Caza Saikaley, SRL/LLP.

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

  • - 2020-06-30 -

    The Supreme Court of Canada’s decision in Uber Technologies Inc. v. Heller, 2020 SCC 16, Spromises to improve the fairness of standard form contracts and promote access to justice for Canadians. In an 8-1 decision, the Supreme Court of Canada ruled that Uber’s arbitration agreement denying drivers access to Canadian courts was unconscionable, exploiting an inequality of bargaining power to impose unfair terms on drivers.

    The case began as a class proceeding brought by Mr. Heller against Uber for wrongfully classifying Uber drivers as independent contractors instead of employees, and in doing so depriving drivers of the protections and benefits of Ontario’s Employment Standards Act, 2000.

  • - 2020-03-13 -

    In partnership with our fellow Samuelson-Glushko Clinic at the University of Colorado, CIPPIC today submitted comments to the Office of the Privacy Commissioner regarding two of its proposals for reforming PIPEDA—Canada's federal private-sector privacy statute—to deal with the challenges posed by artificial intelligence. Our submissions on behalf of 25 privacy scholars from Canada, the United States, and Europe—led by Prof. Margot Kaminski of the University of Colorado and CIPPIC Director Vivek Krishnamurthy—respond to OPC's proposals to amend PIPEDA to “[p]rovide individuals with a right to explanation and increased transparency when they interact with, or are subject to, automated processing” (Proposal 4), and “[r]equire the application of Privacy by Design and Human Rights by Design in all phases of processing, including data collection” (Proposal 5).

    Specifically, our submissions suggest that a revised PIPEDA should include:

    1. An individual right to an explanation of an algorithmic decision with significant effects on individuals;

    2. Legal requirements for the application of Privacy and Human Rights by Design in all phases of data processing;

  • - 2019-12-10 -

    CIPPIC and vLex deploy expert knowledge and artificial intelligence to improve the ability of Canadian citizens to make a difference.

    CIPPIC and international legal technology firm vLex are partnering in a Law Foundation of Ontario funded project to seek to reduce the barriers to effective public participation in communications policy-making by developing a free and fully public communications law and policy research platform.

    This initiative aims to increase access and contextual understanding of regulatory, policy and legal submissions and documentation, allowing Canadian citizens to become more informed and more influential in a policy-making process that is often dominated by multi-billion dollar telecom and broadcasting giants.

    Built on vLex’s AI-powered technology, Iceberg, CIPPIC and vLex will train and deliver the tools that analyze the thousands of documents, comprising millions of pages, generated across hundreds of regulatory, legislative, judicial and policy proceedings. All with the goal of arming the public with the capability to participate effectively and at a level previously available only to the largest commercial entities.

  • - 2019-12-06 -

    The appeal of Cooperstock v United Airlines, Inc., scheduled to be heard Tuesday, December 10, has been discontinued as the parties have reached a settlement.

    While undoubtedly a positive development for the parties - who bear the cost and stress of the litigation - the development leaves intact the troubling lower court decision in United Airlines, Inc. v. Cooperstock, 2017 FC 616 (CanLII).  Mr. Cooperstock operated Untied.com, a consumer criticism site targeting the plaintiff, United Airlines.  United, after years of tolerating Mr. Cooperstock's stings, in 2012 concluded that it could take no more and filed a statement of claim alleging copyright infringement and a number of violations of its rights under the Trademarks Act.  The lower court agreed sided with United in a controversial opinion. Mr. Cooperstock appealed.

  • - 2019-11-13 -

    Justice Boswell of the Federal Court of Canada has denied Voltage’s motion to certify a “reverse” class proceeding for copyright infringement against a class of unidentified internet subscribers and alleged BitTorrent users.

    CIPPIC intervened in the motion, arguing among other things that Voltage’s pleadings did not disclose a reasonable cause of action and that a class proceeding was not preferable given that it would amount to individual factual inquiries specific to each class member.  The Court agreed on both counts.  In rejecting the motion, Justice Boswell concluded:

    [77]  I agree with CIPPIC’s submissions that Voltage’s pleadings do not disclose a reasonable cause of action with respect to primary infringement.  While Voltage alleges that its forensic software identified a direct infringement in [sic] Voltage’s films, Voltage has failed to identify a Direct Infringer in its amended notice of application. ... 

    [...]

    [160]  A class proceeding is not a preferable procedure for the just and efficient resolution of any common issues which may exist.  The proposed proceeding would require multiple individual fact-findings for each class member on almost every issue. ...

  • - 2019-10-18 -

    CIPPIC has filed its intervener factum in the Supreme Court in Uber v. Heller, SCC No, 38534, an important case addressing when courts should refuse to enforce contractual restrictions on fair access to justice. CIPPIC’s argument focuses on the applicability of the equitable doctrine of unconscionability to standard form contracts that include contractual restrictions that deny access to justice. CIPPIC proposes a two-step test to aid courts in determining whether such contractual restrictions would result in the unconscionable denial of access to justice.

    Professor Marina Pavlović and Cynthia Khoo (LLM Candidate and CIPPIC researcher) are acting for CIPPIC in this intervention.  Newly minted lawyer and former CIPPIC Articling Student Johann Kwan also signed on CIPPIC's behalf.

    The case is scheduled to be heard November 6, 2019.