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 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. 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 National Post, followed by Richard Warman today withdrew their respective appeals of the important Federal Court decision in Warman v. Fournier, 2012 FC 803. The withdrawals occurred just five days before the appeal was set down to be heard before the Federal Court of Appeal. The decision has enormous implications for journalists, bloggers, and online free speech generally.

The surprise move means that Justice Rennie's initial findings stand. The Appellants challenged these, arguing that:

  • hyperlinks do not count as 'attribution' (a pre-requisite to the exercise of some fair dealing rights);
  • copyright law's limitation period applies to works published on the internet is effectively renewed daily, as the content posted to the Internet is reproduced 'every day' it remains available, leading to never ending potential liability;
  • platform hosts are liable for content posted to their sites even before they receive notice from a litigang that the content in question may be infringing; and
  • reproducing general excerpts from an original work amounts to taking a "substantial part" of the work when assessing a non-economic claim of infringement.

CIPPIC had intervened in the case and filed a Memorandum of Fact and Law supportive of the holdings of Justice Rennie at the trial level. For more information, see our resource page: https://cippic.ca/copyright/national_post_v_fournier

If you visited our website yesterday, you most likely noticed the following black-out page covering the entire cippic.ca site:

 
CIPPIC.ca joined countless other websites in going entirely dark, or at least notionally censoring, our web pages for the day.  This action was part of a worldwide protest against the U.S. Stop Online Piracy Act (SOPA) and PROTECT-IP Act (PIPA). The black-outs aimed to give web users a feel for what the internet could become under the purview of the proposed U.S. legislation -- that is, an internet where you might attempt to visit your favourite website, only to find that it was censored and blocked on the basis of aggressive U.S. content policies.

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.)