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Supreme Court Rules Facebook Can’t Contract Out of B.C. Privacy Law

The Supreme Court of Canada issued a landmark decision this morning on the enforceability of forum selection clauses in online contracts, rejecting Facebook’s effort to block a privacy class action lawsuit in British Columbia on the grounds that its own contract specified that legal actions be brought in California. A divided court ruled that the unequal bargaining power between consumers and companies such as Facebook – combined with the importance of privacy rights – meant that the clause should not be enforced and that the lawsuit should proceed in Canada.

The decision represents a clear recognition that courts should not be quick to allow companies to contract out of important rights by ousting local laws through forum selection clauses. More broadly, the terms found within non-negotiated take-it-or-leave it clickwrap contracts should not always be enforced by the courts, particularly where important rights or remedies might be lost by doing so. While forum selection clauses are an obvious mechanism for restricting rights, the reasoning might also be applied to other online contractual terms that seek to override important laws and protections. These could include contractual terms that seek to override copyright user rights such as fair dealing or local consumer safeguards.

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June 23, 2017 2 comments News
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U.S. Lobby Groups Take Aim At Canadian Copyright Law in NAFTA Comments: No Balance, No Fair Use, & No Cultural Exception

The U.S. just completed its consultation on negotiating objectives in the upcoming NAFTA re-negotiations (the Canadian consultation is open until July 18, 2017). There are well over a thousand comments, but a review of the lobby groups who pay attention to copyright reveals that they hope to use the talks to make significant changes to Canadian copyright law. This was expected – I touched on the trade dimension of domestic reforms in my recent Policy Options piece on the 2017 copyright review – but the extent to which many groups want to toss aside foundational elements of Canadian copyright law may still surprise.

For example, the Copyright Alliance, which represents a wide array of lobby group associations and Hollywood type interests, rejects the inclusion of balance as an objective in copyright law. It notes that the TPP included a balance provision and warns against something similar in NAFTA. Ironically, the TPP provision was non-enforceable, stating only:

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June 22, 2017 6 comments News
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Five Eyes Wide Open: How Bill C-59 Mixes Oversight with Expansive Cyber-Security Powers

Four years ago, Edward Snowden shocked the world with a series of surveillance disclosures that forced many to rethink basic assumptions about the privacy of online activities in light of NSA actions. In the years that have followed, we have learned much more about the role of other countries – including Canada – in similar activities (often in partnership with the NSA). The legality and oversight over these cyber-related programs fell into a murky area, with legal challenges over metadata programs, court decisions that questioned whether Canadian agencies were offside the law, the hurriedly drafted Bill C-51 that sparked widespread criticism, and concern over the oversight and review process that many viewed as inadequate.

Yesterday, the Liberal government unveiled Bill C-59, the first genuine attempt to overhaul Canadian surveillance and security law in decades. The bill is large and complicated, requiring months of study to fully assess its implications (reactions from Forcese/Roach, BCCLA, CBC, Wark, Amnesty). At first glance, however, it addresses some of the core criticisms of the Conservatives’ Bill C-51 and a legal framework that had struggled to keep pace with emerging technologies. Leading the way is an oversight super-structure that replaces the previous silo approach that often left commissioners with inadequate resources and legal powers. The government has promised to spend millions of dollars to give the new oversight structure the resources it needs alongside legal powers that grant better and more effective review of Canadian activities.

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June 21, 2017 5 comments News
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Why the Government’s ATI Reform Bill is a Promise Broken: Proactive Disclosure ≠ Access to Information

When political parties find themselves in opposition, promising to fix the access to information system invariably seems like a good idea. The public is often skeptical about whether the government is transparent and when combined with a woefully outdated Access to Information Act, reform provides a ripe target. Stephen Harper’s Conservatives promised a long list of access to information reforms before taking power, most of which were never acted upon. Justin Trudeau’s Liberals made similar promises when in opposition, unveiling a 32-point plan in June 2015 that pledged a fair and open government backed by access to information reform.

The government introduced Bill C-58 yesterday, the bill promoted as fulfilling its commitment on access to information reform. Discouragingly, it fails to do so. The bill does include some notable improvements, including implementing order making power for the Information Commissioner and establishing a requirement to justify, with written reasons, why information is redacted. However, the bill does not live up to the campaign promise nor does it fully address longstanding concerns with the law.

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June 20, 2017 1 comment News
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Saving Private Media: The Good, the Bad, and the Terrible From the Latest Canadian Proposals

Canadian Heritage Minister Melanie Joly does not plan to release her digital culture policy plan until September, but the pressure to address the financial challenges faced by media organizations increased last week with the Standing Committee on Canadian Heritage report (the same report that recommended an Internet tax that was swiftly rejected by Prime Minister Trudeau) and a proposal from News Media Canada that seeks hundreds of millions in annual government support. The recommendations don’t end there: copyright reform, tax changes, and amendments to government advertising policies are all part of the proposals to provide support to Canadian media organizations.

Andrew Coyne’s must-read column persuasively argues against a media bailout, noting the dangers of permanent government funding of an otherwise independent media. He rightly argues that if funding is established, it isn’t going away as government will be reluctant to allow funded media organizations to fail.  Further, Ken Whyte, former editor-in-chief of the National Post, openly acknowledges in a Twitter stream the constraints that come from criticizing government when funding or regulation is at stake.

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June 19, 2017 6 comments News