Overdue legislative action threatens existence of made-in-Alberta privacy laws

Michael Decicco and Daniel Hamson

On November 15, 2013, the Supreme Court of Canada issued its decision in Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401 (United Foods), ruling that Alberta’s Personal Information Protection Act (PIPA) was unconstitutional and declaring it invalid. As noted in a previous post, the Court suspended the declaration of invalidity until November 15, 2014 in order to provide the legislature with sufficient time to decide how to best make the law constitutional.

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Mobile applications - results of global study of privacy practices and tips for increasing transparency

Michael Decicco and Lin Cong

The Global Privacy Enforcement Network recently published the results of its second annual privacy enforcement survey or “sweep” which assessed the transparency of the privacy practices of popular mobile applications. The results of the sweep suggest that the privacy policies of a high proportion of mobile applications do not adequately explain how users’ personal information is collected, used and disclosed. The general conclusion of the sweep was that clear and concise language in privacy policies builds consumer trust and is good for business.

The Office of the Privacy Commissioner of Canada (Commissioner) participated in the sweep and focused on 151 mobile applications that were popular among Canadians. The key findings of the Commissioner are as follows:

  • 28% of the applications surveyed provided a clear explanation of their collection, use and disclosure of personal information practices;
     
  • 26% of the applications surveyed offered either no privacy policy or one that did not explain how users’ personal information would be collected, used or disclosed; and
     
  • among the applications with the best privacy practices were popular applications in the e-marketplace.
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Landmark decision recognizes an individual's right to privacy over his or her online activities

Michael Decicco and Tracy Chen

The Supreme Court of Canada recently released its decision in the landmark case of R. v. Spencer, in which it found that a police request to an Internet service provider for subscriber information constituted a search under the Charter of Rights and Freedoms, and that Internet users have a reasonable expectation of anonymity in their online activities.

Background

In Spencer, police identified the IP address of a computer that an individual had used to access and store child pornography through a file-sharing program. The person had downloaded the offending material into a folder that was accessible to other users using the same program.

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B.C. Supreme Court certifies class action against Facebook

David Spence and Kathleen Elhatton-Lake -

On May 30, 2014, the British Columbia Supreme Court released its decision in Douez v. Facebook, granting the Plaintiff’s motion to certify a claim for statutory breach of British Columbia’s Privacy Act (the Privacy Act) against the defendant, Facebook.

The Plaintiff alleged that Facebook had taken names and images of Facebook users in British Columbia without the knowledge or consent of the user and featured them in “Sponsored Stories”. Sponsored Stories were advertisements, featuring the Facebook user’s name or likeness, that were sent to the user’s contacts without his or her knowledge or consent. Section 3(2) of the Privacy Act provides that:

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Use of English-only Trade-marks on store signs OK'd by Quebec Superior Court

Yury Smagorinsky and Catherine Jenner -

On April 9, 2014, the Quebec Superior Court issued its 55-page decision in Magasins Best Buy ltée c. Québec (Procureur general). The action had been initiated by certain major retailers including Wal-Mart, Best Buy, Guess, Gap, Old Navy, Guess, Walmart, Toys "R" Us and Curves against the Office québecois de la langue française (OQLF), the provincial Quebec government organization that is responsible for ensuring compliance with Quebec’s French language laws. The action sought to recognize the retailers’ right to display English-only trade-marks on public storefront signage in Quebec, a right the OQLF was contesting.

In Quebec, Bill 101, the Charter of the French Language (Charter), requires that the language on public signs be predominantly in French. Another rule in the Charter requires that businesses operating in Quebec use a French version of their firm name whenever the use of French is mandated. A firm name displayed on the sign may include words in a language other than French, provided that the non-French term(s) is accompanied by a generic French term. Examples of generic French terms used are "Magasin" (store) or "Restaurant". 

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Canada's Anti-Spam Law: Will Your Business Be Ready?

On February 13th, the Communications Group hosted a breakfast seminar in the Toronto office entitled “Canada’s Anti-Spam Law: Will Your Business Be Ready?”.  David Elder briefed those in attendance on key requirements of Canada’s Anti-Spam Law (CASL), the electronic messaging requirements of which will come into effect on July 1, 2014. Among those requirements, David spoke of the obligation to obtain prior consent in the delivery of commercial electronic messages (CEMs) and the prescribed form requirements for those messages, outlined a number of the key exemptions that may be available to some senders, and reviewed the timeline for implementation of various aspects of the new law.  David also reviewed some of the particular challenges that organizations are facing in implementing the new law and discussed the work that organizations must do to be able to continue to send marketing messages to established contact lists.   

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Voltage meets resistance from Federal Court: new safeguards imposed on disclosure order to combat copyright trolling

David Elder -

In a ground-breaking order, the Federal Court of Canada has for the first time included, in an order compelling third party disclosure of subscriber information, new conditions intended to better balance subscriber privacy rights and dissuade abuse of disclosure orders by copyright owners.

In the case of Voltage v. Doe, film production company Voltage Pictures LLC had sought from internet service provider TekSavvy Solutions Inc. the disclosure of the contact information of some 2,000 internet service customers that Voltage alleged had illegally downloaded movies in which it holds copyright.  TekSavvy refused to disclose the records in question, and Voltage brought a motion for an order requiring TekSavvy to disclose the information in question.

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Budget 2014: new money for broadband, new wireless rules and enforcement tools

David Elder -

The 2014 federal budget, introduced on February 11, 2014, included several items of interest to the telecommunications industry, including plans for revisions to the regulatory framework for wireless services and a commitment of federal funding to extend and enhance the access to high-speed broadband networks in rural and Northern communities.

As part of its “consumers first” strategy, the government has proposed, in its Economic Action Plan 2014, a number of measures intended to strengthen competition in the telecommunications market.  Notably, the new budget builds on an earlier announcement of plans to amend the Telecommunications Act to cap wholesale domestic wireless roaming rates, at least until such time as the CRTC, which is currently examining the issue, makes a decision respecting such roaming rates.

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Government agencies clarify roles under Canada's Anti-Spam Legislation

David Elder and Shannon Kack -

In an effort to coordinate their potentially overlapping mandates, the three agencies charged with enforcement of Canada’s new anti-spam law have signed a Memorandum of Understanding (MOU) dealing with cooperation and sharing of information among the agencies.

On January 23, 2014, the Competition Bureau announced that the Commissioner of Competition, the Privacy Commissioner of Canada and the Canadian Radio-television and Telecommunications Commission (CRTC), have signed an MOU regarding the implementation of their respective mandates under Canada’s Anti-Spam Legislation (CASL).

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IIROC releases guidance regarding dealer outsourcing

Earlier this week, the Investment Industry Organization of Canada released guidance relating to the outsourcing arrangements commonly entered into by investment dealers.

Generally, the notice summarizes existing requirements and guidance relating to entering into and maintaining outsourcing arrangements, describes the types of business activities that may and may not be outsourced and sets out IIROC's expectations concerning due diligence procedures that must be undertaken by dealers prior to outsourcing business activities.

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Supreme Court of Canada addresses important issues in Canadian Copyright Law

Justine Whitehead and Gina Demczuk -

On December 23, 2013, a unanimous Supreme Court of Canada issued its decision in Cinar Corporation v Robinson. The decision provides clarification on a number of important issues in Canadian copyright law, including (but not limited to): (i) the appropriate test for determining if a substantial part of a copyrighted work has been reproduced; (ii) when expert evidence in respect of substantial taking should be adduced in copyright infringement cases; and (iii) several issues in respect of the calculation of damages and accounting of profits.

The Supreme Court decision is the last word in a case that has its genesis in actions undertaken decades ago. Claude Robinson began developing an idea for a children’s television show, The Adventures of Robinson Curiosity (Curiosity), in the early 1980’s. He spent more than a decade after that trying to get the project developed. During this time, Robinson shared his work (which included detailed sketches, storyboards, scripts and synopses), with several of the individual and corporate defendants (including Cinar Corporation).

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Bringing trademark infringement proceeding by application may have effect on damage award

On November 26, 2013, the Federal Court issued its decision in Trans-High Corporation v. Hightimes Smokeshop and Gifts Inc. The proceeding, which claimed trademark infringement, passing-off and depreciation of goodwill, was brought by the applicant, Trans-High Corporation (Trans-High) by way of a summary application to the Federal Court.  This option (which sees evidence confined to affidavit evidence, and no rights of discovery) was confirmed to be available by the Federal Court of Appeal in its 2011 decision in BBM Canada v. Research in Motion Limited. The respondent, Hightimes Smokeshop and Gifts Inc. (Hightimes Smokeshop), did not file any submissions in the proceeding or appear at the hearing.

In upholding the claims for trademark infringement and passing-off, the Court found that Hightimes Smokeshop had infringed Trans-High’s trademark “HIGH TIMES”, which has been registered in Canada since 1980 for use in association with magazines.  The Court found that Trans-High had tendered sufficient evidence to show a likelihood of confusion between its use of the mark in association with High Times magazine and website (with a focus on medical and recreational uses of marijuana) and Hightimes Smokeshop’s retail sale of marijuana-related paraphernalia and merchandise.  However, the Court declined to find depreciation of goodwill, citing insufficient evidence.   In particular, the Court noted that the evidence of volume of sales and depth of market penetration of magazines and related wares sold by Trans-High in Canada was limited, as was evidence in respect of the extent of advertising and publicity accorded to Trans-High’s HIGH TIMES trade-mark.  Further, there was little evidence of the degree of inherent or acquired distinctiveness of the HIGH TIMES trade-mark, and the products associated with the mark were confined to a specialized channel of trade.

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Canada finalizes anti-spam regulations; new anti-spam rules in effect July 2014

David Elder -

The Canadian government has finalized long-awaited regulations made under Canada’s Anti-Spam Law (CASL), announcing at the same time that the core of the new anti-spam regime will come into force on Canada Day, July 1, 2014, while other provisions will come into force the following year, and some will not be effective until 2017.

While the final regulations do include a number of last-minute revisions that respond to concerns raised by Canadian businesses, the new regime promises to have a significant negative impact on many businesses that have come to rely on electronic marketing. 

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New cyberbullying bill resurrects many police powers from scrapped "lawful access" bill

David Elder -

A new proposed federal law would make it a crime to distribute “intimate images” without the consent of the subject of those images; however, the new law would also create new police powers and procedures that go well beyond the context of cyberbullying to cover a broad range of online activity associated with other crimes.  The breadth of the cyberbullying offence may also raise concerns for news media about possible criminal liability for reporting certain stories.

In fact the bill, introduced as Bill C-13 and entitled the Protecting Canadians from Online Crime Act, appears to resurrect many of the provisions from the last incarnation of the failed lawful access bill, Bill C-30.  Bill C-13 seems to reintroduce much of what had been Part 2 of the earlier bill, including many of the proposed new and amended powers respecting the preservation and production of various types of electronic data, including the provision by telecommunications service providers of transmission or metadata associated with electronic communications, as well as setting out the procedures through which these orders would be obtained.

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No dice: Supreme Court declares Alberta privacy law unconstitutional in Palace Casino case

David Elder -

In a landmark ruling, the Supreme Court of Canada has declared Alberta’s Personal Information Protection Act (PIPA) to be invalid in its entirety, finding that it infringes the freedom of expression guaranteed by the Canadian Charter of Rights and Freedoms by limiting the ability of labour unions to videotape and photograph individuals crossing a picket line.

The declaration of invalidity is suspended for a period of 12 months to give the legislature time to decide how best to make the law constitutional. In light of the “comprehensive and integrated structure” of the law, the Court decided to strike PIPA down in its entirety, rather than declare as invalid particular provisions.

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