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CIPPIC has submitted feedback to the Department of Canadian Heritage concerning the proposed legislation to address “harmful content” online. The public consultation was launched right before the federal election was called with a deadline to submit right after the end of the election, causing civil society and academic experts to request a delay  to the submission deadline. No deferral was ultimately granted.

In its submission, CIPPIC calls on the Department of Canadian Heritage to reconsider its approach to addressing activity that occurs online, given that the current approach jeopardizes claims that Canada is a global leader of human rights. The submission focuses on problems relating to the law’s scope of application, its demand that platforms block unlawful content within 24 hours of being flagged, as well as alarming requirements for online service providers to proactively monitor and filter content as well as report information on users to law enforcement.

The Supreme Court of Canada today released its decision in York University v. Access Copyright, 2021 SCC 32.  The case addressed two issues: whether Access Copyright’s Copyright Board tariff is mandatory, and whether copying by York pursuant to its Guidelines constitutes fair dealing.  Both courts below had ruled the tariff not mandatory and the Guidelines unfair.

In a unanimous decision penned by Justice Abella (in her last case on the bench), the Court found that the tariff was not mandatory and so was unenforceable against York, and in light of the absence of any real legal issue between York and Access Copyright, that it would be inappropriate to decide the fair dealing issue. 

However, the Court cautioned that this result should not “should not be construed as endorsing the reasoning of” the courts below, citing “some significant jurisprudential problems with those aspects of their judgments that warrant comment.”  The Court went on to “correct” those “errors” [para. 87-88]

Highlights of that analysis include:

In yet another of a long string of missed opportunities and short-sighted half measures, the CRTC has announced its regulatory solution for Canada's chronic cell phone market debacle. In adopting a regime that replicates, rather than overcomes, the most problematic features of Canada’s mobile landscape, the Commission’s regulatory solution offers slim hopes for Canada’s cell phone market.

As anyone with a phone plan is aware, world-high mobile prices have plagued Canadians for years. Yet Canada’s dominant national providers (TELUS, Bell and Rogers) have persistently denied this reality through lobbying efforts, regulatory filings, and even active misdirection. It is therefore encouraging that the CRTC’s recent decision finally and definitively confirms the nature and scope of Canada’s pricing woes.

The decision also correctly identifies several endemic problems in mobile competition that have caused this state of affairs: market entry is difficult, as upfront costs are high, spectrum is inherently limited, and dominant providers enjoy a substantial head start. As a result of these conditions, several stuttering attempts over the years to instill price discipline from new competitors have failed to make any meaningful headway into the national providers’ dominant market presence and globally high revenues. In response, the Commission adopts a two-tiered regime. First, in an attempt to provide more competition, it obligates dominant providers to let competitors operate 'virtually', without the need to build their own networks (the MVNO mandate). Second, to provide some relief for Canadians who simply cannot afford mobile data connectivity, dominant providers will be obligated to offer lower cost plans.

Each component promises, in theory, to address long-standing problems in Canada's cell phone landscape, but both fall short in the implementation. The MVNO regime is crafted narrowly, and is only available to a small number of existing comptitors. The low-cost plans imposed by the CRTC will help some customers in some regions, but mostly replicate plans already offered by some regional competitors, and do so on outdated 3G technology.

Cross-posted & paired with a post by Erin Knight at OpenMedia.ca. Image Source: Georg Arthur Pfleuger, @knurpselknie, "Facetime between mother and son", Unsplash, June 20, 2020

Today, CIPPIC presented its intervention in a hearing before the Federal Court as part of a reference launched by the Office of the Privacy Commissioner of Canada. At issue is the degree to which PIPEDA - Canada's federal privacy law - applies to activities of commercial search engines.

As noted in our written submissions:

1. PIPEDA applies to commercial search engines.

2. In order to determine whether personal information is collected, used or disclosed in the course of commercial activities under s. 4(1)(a) of PIPEDA, the Court must evaluate the relationship between that information and the organization’s business model. The commercial value of most Internet companies and social media platforms is derived by providing a free service to attract user’s time, attention and personal information, which is then monetized through advertising, tracking and profiling. A restrictive definition of “commercial activity” which includes nothing but discrete, revenue-generating interactions ignores precisely the kinds of business models that drive the digital economy and that PIPEDA was intended to regulate.

3. Whether the collection, use or disclosure of personal information is undertaken for exclusively “journalistic” purposes must be determined with reference to Parliament’s intent and the constitutional rationale for the exclusion set out in s. 4(2)(c) of PIPEDA. This analysis must account for the particular role played by a free, adversarial and independent press in a democratic society—through newsgathering, source protection, the exercise of professional discipline and editorial judgement, and a commitment to communication on matters of public interest. The fact that an organization happens to permit the dissemination or discovery of journalistic content through its platform is not sufficient to immunize its activities from scrutiny under PIPEDA as a whole. The Act and the Charter provide other safeguards in this respect.

4. The remedy sought by the Complainant has obvious implications for section 2(b) Charter rights and a conclusion that PIPEDA applies to commercial search engines may eventually raise other constitutional and policy questions. However, the rules of statutory interpretation do not permit the Court to preempt these debates by distorting the meaning of the Act’s application clause to exclude certain organizations from Canadian privacy regulation altogether. Appropriate and properly tailored constitutional remedies are available in the event that these concerns are well-founded in law and actually materialize.

The reference is currently scheduled to be heard January 26-27. CIPPIC is being represented by M^e Lex Gill from Trudel, Johnstone & Lespérance.

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