CIPPIC's application for leave to intervene has been granted in Douez v Facebook Inc, SCC File No 36616, an appeal that raises fundamental questions regarding the nature of online jurisdiction, e-consumer protection and privacy. Specifically at issue is a forum selection clause imposed by Facebook onto all of its customers, on a take it or leave it basis, mandating that all disputes be brought against it in California. On the basis of this clause, it was held that a class action launched against Facebook in BC and alleging violations of BC privacy laws cannot proceed.
Managing online jurisdiction-where services can have significant global presence and impact on a largely virtual basis-has strained digital policy since the early days of the world wide web. However, CIPPIC's proposed intervention intends to argue that forum selection clauses are ill-suited as a means of navigating the challenges posed by global online services. A mandatory, non-negotiable forum selection clause effectively opts a service provider out of Canadian standards and laws as foreign courts tend to apply their own rules and standards. As forum selection clauses are ubiquitous and non-negotiable in online services, their universal enforcement could effectively deprive Canadians from domestic protections in relation to digital activities that are increasingly critical to their daily lives. In addition, it could force any Canadian individual embroiled in a dispute with a global online platform to undertake the expense and inconvenience of suing in a foreign court.
As part of ongoing proceedings set to establish a 'Wireless Bill of Rights' for customers of Canadian wireless services, the CRTC held a hearing seeking input on what protections should be included in such a document. CIPPIC, appearing alongside its client in the proceeding, OpenMedia.ca, called on the CRTC to take strong steps towards alleviating growing customer frustration with a highly concentrated and difficult to navigate mobile service landscape. This requires, CIPPIC argued, simplified and standardized point of sale information on the nature and cost of services. It also requires that mobile service providers deploy real-time usage management tools that help individuals avoid bill shock. This includes handset-based notifications that kick in as individuals approach their usage limits, as well as a customizable 'hard' notification that will temporarily cut off usage as individuals approach excessive usage fees ($50, for example).
In addition, effective protections will lower switching costs that currently keep customers locked in to their plans long after their smartphone battery expires, long after their frustration with changing fees or inadequate customer service raises their level of frustration to new heights, long after the wireless market has evolved to offer cheaper and more responsive service offerings. Lock-in, which, uniquely in Canada, is typically for three year terms of service, is achieved by a combination of technical measures preventing an individual from using their handset with another service and hefty fees (which can amount to hundreds of dollars depending on how far the individual is into their contract) levied at individuals seeking to leave their contracts early.
CIPPIC has submitted comments in Telecom Notice of Consultation CRTC 2012-557, a proceeding which seeks to establish a set of rights of customers of wireless services across Canada. The proceeding was launched after the Commission decided, in Telecom Decision CRTC 2012-556, that wireless customers were in need for greater protections at the national level. CIPPIC's submission, filed on behalf of OpenMedia.ca, focused on the need to address many shortcomings in the Canadian wireless landscape and the need to facilitate competition. Specifically, CIPPIC called on the CRTC to restrict termination penalties and hardware lock-ins.
Using a combination of technical lock-in mechanisms and excessive penalties for breaking contracts, providers prevent customers from switching outside 2-3 year contractual cycles. At the same time, these lock-in mechanisms prevent effective competition on handset prices. Providers have no incentive to ever compete on handset prices, as higher-seeming handset prices make handset subsidy-based three year lock-ins appear a fantastic deal for customers. In reality, however, customers end up paying more for the handset and more for their monthly services, while providers are insulated from actually having to compete to keep their customer base. An effective Wireless Consumer Protection Code will address this deficiency.
The Canadian Identity Theft Support Centre (CITSC) is scheduled for its official launch on June 28, 2012. The CITSC will be Canada's first comprehensive support centre for victims of identity theft. It will provide much needed support services for victims of identity theft who undertake the often long and difficult road to recovering their identities. This identy recovery process is typically lengthy and time-consuming. Modelled on the successful U.S. based Identity Theft Resource Center, the CITSC will operate as a source of guidance for Canadians in their attempts to navigate this process.
The CITSC will also act as a source of educational materials aimed at educting Canadians on how to protect their identities and on steps that can be taken by Canadians to help spot early signs their identity may have been stolen. In addition, the CITSC will act as a source of research and knowledge dissemination regarding the parameters and nature of identity theft harms in Canada.
CIPPIC is highly supportive of the CITSC's initiatives, and will be participating in the public launch of the Centre. Join us in person at the Ottawa launch, which will be held from 1:30 pm - 4:30 pm EST in the Newfoundland Room of the Westin (11 Colonel By Drive) in Ottawa. The Centre will be simultaneously launched in Vancouver, B.C., at Library Square.
As part of TNC CRTC 2010-43, a process examining the obligation of internet service providers to ensure universal affordable access to broadband Internet, CIPPIC, acting for OpenMedia.ca, argued in its submission that the CRTC is tasked with putting in place a comprehensive telecommunications framework, and that this mandate includes the obligation to ensure a minimal level of affordable access to telecommunications services for all Canadians. CIPPIC explained that the CRTC has broad and varied tools at its disposal that it may use to ensure all Canadians have access to broadband Internet.
As part of its intention to help Canada regain its leadership position in the global digital economy, the government recently concluded a public consultation process which sought submissions from all sectors of the public on who to achieve this objective.
CIPPIC provided two input streams into the Government's consultaiton process. First, we helped develop and endorsed a consensus subimssion convened by Andrew Clement and Karen Louise Smith of the University of Toronto's Faculty of Information. In addition, CIPPIC's 2010 summer interns put together a comprehensive submission that set out 36 recommendations. In this submission, CIPPIC calls on the government to encourage the creation of a digital environment that will be better for all Canadians and will serve as a model for other jurisdictions. CIPPIC offers recommendations on issues such as privacy, online file-sharing, and on quality and access to communications that will help the government achieve this objective.
For more info see: https://cippic.ca/Digital_Economy_Consultation_Canada
Bell et. al. v. Amtelecom et. al., FCA File No. A-337-13
Crookes v. Newton, 2011 SCC 47, (Defamatory liability for hyperlinking)
In late July, 2007, CIPPIC followed the lead of public interest groups in the USA and Europe by asking Canadian competition authorities
to review the proposed merger of Google and DoubleClick on the grounds that it will substantially prevent or lessen competition in the online targeted advertising market.
On June 9, 2006, CIPPIC, together with the Public Interest Advocacy Centre (PIAC), filed an application for leave to intervene in the Supreme Court of Canada appeal of a Quebec Court of Appeal decision by Dell Computer Corporation. Dell was appealing a determination that the mandatory arbitration clause in its standard terms and conditions of sale was unenforceable against consumers because it was not properly brought to their attention. Dell merely included a hyperlink to the terms and conditions of sale on its website.
The term Trusted Computing refers to a computer hardware and software design paradigm pioneered by the Trusted Computing Group that aims to make personal computers more secure. The technology ensures that a computer only runs trusted software, and only communicates to other computers that are also running trusted software. Trusted Computing has the potential to increase computer security, but is also controversial because it transfers some control of a computer away from the user to a “trusted” third party.
Cloudmark's recently issued 2015 Q1 Security Threat Report demonstrates the initial effectiveness of the recently enacted Canadian Anti-Spam & Spyware Law (CASL), SC 2010, c. 23, in reducing the amount of unwanted spam in email boxes in Canada and abroad. In the 8 months following the coming into force of the law, the report notes a 29% reduction in the average amount of spam received by Canadians each month. It notes an even more significant 37% reduction in spam sent from Canada to the United States. The larger reduction in US-bound spam is unsurprising, as Canada (who was one of the last countries in the developed world to finally adopt an anti-spam law) had become a spam haven, with 78% of all Canadian spam being US bound. By contrast, only about 50% of spam received by Canadians is from the United States, which has regulated spam to some degree for many years.
With respect to Canadian-received spam, the report notes that only about 17% of unwanted spam email received by Canadians relates to fraudulent "bootleg pharmaceuticals, diet pills and adult services." This amount of spam was reduced by about 5% in the months since CASL came into force (29% overall reduction x 16% of all spam). The most marked reduction, however, was from 'grey area' marketers, which the report describes as "unscrupulous email marketers" who "grow their mailing lists by co-marketing or easy-to-miss opt out checkboxes." The 24% reduction in this brand of unwanted email spam (which the report terms as 'legitimate' because it is legal under U.S. spam laws) affirms that the broader approach to spam adopted by CASL is necessary to make any meaningful inroads in spam reduction. CASL adopted a definition of 'spam' that allows Canadians to decide for themselves what emails they do or do not want to receive, whereas the US anti-spam law relies on easy to abuse 'opt out checkboxes'. And Canadians have taken to the law in droves, with the CRTC receiving an unprecedented 47,000 plus complaints against unwanted emails in just the first month after CASL came into effect.
Regulators provide guidance on mobile privacy, tracking & advertising
TNC CRTC 2012-557, proceeding to establish a mandatory code for mobile wireless services (national wireless customer protection)
TNC CRTC 2011-77, Review of billing practices for wholesale residential high-speed access services (Data caps & competition on pricing models in wholesale)
Telecom Public Notice CRTC 2008-19, Review of Internet Traffic Management Parctices of Internet Service Providers (Net Neutrality & throttling of peer-to-peer services)
In the summer of 2005, CIPPIC assisted an individual with a series of hate speech complaints under the Canadian Human Rights Act.
Canada's 2010 Digital Economy Consultation
On January 30, 2004, CIPPIC filed comments with the Ontario Ministry of Consumer and Business Services (MCBS) on its draft regulations under the Consumer Protection Act, 2002, as they would affect online transactions.