CRTC gets frosted at Kellogg's over email violations

David Elder

In the fifth, and most recent, enforcement decision relating to compliance with Canada’s Anti-Spam Legislation, the CRTC has announced that Kellogg Canada has voluntarily entered into an undertaking respecting alleged non-compliance, which includes payment of $60,000 in penalties.

The undertaking resulted from an alleged failure to obtain consent from recipients prior to sending commercial electronic messages.  The alleged violations apparently occurred over an 11-week period in late 2014.

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Privacy Shield formally adopted by the European Commission

Michael Decicco and Rona Ghanbari

On July 12, 2016, the European Commission (Commission) formally adopted the EU-US Privacy Shield (Privacy Shield) by issuing its adequacy decision, providing a new structure for cross-border data transfers from the European Union (EU) to the United States.

Background

The Privacy Shield was developed after the Commission’s previous adequacy decision regarding the Safe Harbour framework was declared invalid by the Court of Justice of the EU. Following extensive negotiations, which considered concerns and recommended changes from the Article 29 Working Party, the Commission and the United States reached an agreement on the terms of the Privacy Shield.

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CRTC partners with global agencies to enforce spam and telemarketing rules

David Elder - 

The Canadian Radio-television and Telecommunications Commission (CRTC) has announced that it has signed a memorandum of understanding with 10 domestic and global enforcement agencies to aid in the enforcement of spam and telemarketing laws.  However, while the announcement is certainly a step in the right direction, many of the countries that produce the most spam were not at the table.

The agreement is intended to promote cooperation between the various enforcement agencies, and includes commitments by each signatory to share information and intelligence regarding unsolicited communications, where permitted by the laws of its jurisdiction.  

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Changes in distribution models may affect trademark rights

Justine Whitehead and Hilary Furness - 

In Canada, and most countries around the world, trademarks which are not being used in association with the goods and services with which the marks were registered are vulnerable to expungement for non-use.  In Canada, challenges can be brought under section 45 of Trade-marks Act, which provides for summary expungement of a trademark if, upon request of the Registrar of Trade-marks, a trademark owner is unable to provide evidence of use of the trademark in Canada during the previous three years, in the normal course of trade and in association with the goods and/or services set out in the registration.  This expungement can only be avoided if the owner proves special circumstances that justify temporary non-use of the trademark.

Technological changes are revolutionizing the methods by which certain goods and services are sold to consumers. At one time, products such as books, music recordings and computer games could only be sold to consumers as tangible items.  Now, of course, these items are routinely made available through various electronic means, and in some cases, the business model has moved from distribution of goods to the offering of on-line services.  But what happens to trademark registrations when evolving technology has changed the manner or medium by which the identified goods and services are offered for sale to consumers?  

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Signs with registered English only trademarks in Québec? Not a problem if you have sufficient and visible French somewhere close by

Gayle Noble, Catherine Jenner and Tania Djerrahian -

On Wednesday May 4, 2016, the Québec Minister of Culture and Communications and Minister Responsible for the Protection and Promotion of the French Language, Hélène David, introduced draft amendments (the Proposed Amendments) to certain regulations under the Charter of the French Language (the Charter) to ensure the presence of French where commercial signs and posters display trademarks exclusively in a language other than French. This article provides some background relating to the Proposed Amendments as well as a summary of some of the key provisions.

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You can Google it: Supreme Court of Canada grants leave to appeal global injunction

Alex Sarabura - 

The Supreme Court of Canada has granted leave to hear an important case respecting the ability of Canadian courts to enjoin the behaviour of organizations with respect to their operations outside of Canada.

On February 18, 2016, the Supreme Court of Canada granted Google Inc. leave to appeal the judgment of the British Columbia Court of Appeal in Equustek Solutions Inc. v. Google Inc., in which the BCCA upheld an interlocutory injunction prohibiting Google from including specific websites in its search results worldwide.

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Cyber-attacks: why any business may be at risk and five possible ways to address the risks

Vanessa Coiteux - 

In this article, Stikeman Elliott’s Vanessa Coiteux reminds us that the risk of cyber-attack is by no means confined to businesses in certain industries. She identifies five cybersecurity risk factors that apply to most or all businesses and discusses how to address them. These observations will be of particular interest to corporate directors who, as the article notes, increasingly have to take the risk of cyber-attacks into account – including in situations where the acquisition or sale of a business is being contemplated.

  • “This is not a big public company!”
  • “This is not a financial institution or a retail company!”
  • “There must be more valuable information to hack out there!”
  • “Putting cybersecurity measures in place is costly!” 
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New EU-US Safe Harbour Agreement

Michael Decicco and Eryn Fanjoy

On February 2, 2016, the European Commission announced that it reached a deal to replace the EU-US Safe Harbour framework that was declared invalid last year by the Court of Justice of the European Union (CJEU).  Referred to as the “EU-US Privacy Shield”, the new framework should provide businesses with guidance for the safe transfer of personal information of citizens of the European Union (EU) to the United States. 

Background

The CJEU declared the old Safe Harbour framework invalid on October 6, 2015.  Under the EU Data Protection Directive, the personal information of EU citizens can only be transferred from the EU to countries with adequate data protection standards. The old Safe Harbour agreement, negotiated between the European Commission and the United States Department of Commerce, was one of a number of mechanisms available to EU businesses to ensure there was an adequate level of protection when transferring personal data of EU citizens to the United States. One of the CJEU’s primary concerns with the old framework was the massive and indiscriminate surveillance of personal information of EU citizens in the United States, which was viewed as incompatible with the “fundamental rights” of EU citizens. 

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Ontario Superior Court creates new privacy tort in revenge porn case

Justine Johnston -

On January 21, 2016, the Ontario Superior Court released its decision in Doe 464533 v D, 2016 ONSC 541, recognizing for the first time the new privacy tort of public disclosure of private facts. The Court’s decision explicitly expands the common law protection of privacy and demonstrates how courts can recognize and provide relief to victims of cyberbullying.

The public disclosure of private facts tort arose from an egregious case of revenge porn cyberbullying. The defendant posted a sexually explicit video of the plaintiff under the user submission section of a pornographic website. When the plaintiff became aware that the video had been posted online, the defendant admitted to uploading it and removed it from the website. Although the video was “removed”, the Court acknowledged that there is no way to know how many times it was viewed or downloaded or if and how many times it may have been copied onto other media storage devices or recirculated. 

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CRTC executes another raid in malware investigation

David Elder - 

The Canadian Radio-television and Telecommunications Commission (CRTC) has announced the execution of another warrant under Canada’s Anti-Spam Legislation (CASL), this time at two locations in the Niagara region of Ontario.

This is only the second such warrant executed by the CRTC under the anti-spam law.  As in a recent previous announcement respecting the execution of a similar warrant, the warrant was issued as part of an ongoing investigation, and the party that was the subject of the warrant was not identified.

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CRTC battles forces of dorkness, takes action against notorious botnet

David Elder - 

In the second such announcement in less than a week, the Canadian Radio-television and Telecommunications Commission (CRTC) has publicly announced an advanced investigative action -- this time against an unnamed organization suspected of involvement in the distribution the notorious and widely distributed Win32/Dorkbot malware.

The CRTC announced that, with the assistance of the Royal Canadian Mounted Police (RCMP), it had served its first-ever warrant under Canada's Anti-Spam Legislation (CASL) to “take down” a command-and-control server located in Toronto, Ontario as part of what the Commission has characterized as a coordinated international effort.

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Fourteen not-so-simple rules for implementing a BYOD program

Kelly O'Ferrall -    

In case you missed it over the summer, the Office of the Privacy Commissioner of Canada, together with the Alberta and British Columbia Privacy Commissioners, teamed up to create guidelines (the Guidelines) to address what employers should consider when implementing policies that allow employees to use their own mobile devices for both work and personal purposes (i.e., a Bring Your Own Device or BYOD policy).

Employers often cite cost savings and convenience as reasons for instituting BYOD policies. Further, as employees are quite often already using their own devices for business purposes (or their work devices for personal purposes), implementing a formal BYOD policy allows employers to clarify the rules and expectations with respect to such use.  Notwithstanding the apparent benefits of having a BYOD arrangement, the Guidelines convey an underlying message that such arrangements should be approached with caution in light of the requirements contained in applicable privacy legislation. Specifically, the obligation to maintain the security of personal information.

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Whither the "Nigerian Prince"? Another Canadian business pays penalty under anti-spam law

David Elder - 

The Canadian Radio-television and Telecommunications (CRTC) has announced its third settlement for alleged violations of the anti-spam law, and again, the announcement relates to a well-known Canadian business, rather than an indiscriminate or malicious spammer.

In this most recent case, Rogers Media Inc. (RMI) agreed to pay an Administrative Monetary Penalty of $200,000 as part of an undertaking to resolve alleged violations of Canada’s Anti-Spam Law (CASL).

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EU-US safe harbour for data transfers declared invalid - Canadian implications

Michael Decicco

On October 6, 2015, the Court of Justice of the European Union (CJEU) invalidated the decision underlying the European Union’s (EU) safe harbor structure for cross-border data transfers from the EU to the United States in Schrems v. Data Protection Commissioner of Ireland (Schrems).  Shortly following the CJEU’s decision, the Article 29 Data Protection Working Party (Working Party) issued a statement outlining its views as to the consequences of the CJEU decision in Schrems.  The decision may directly impact Canadian businesses which transfer data from the EU to the United States or which host data in the United States.

Safe Harbor and Schrems

Under the EU Data Protection Directive, personal information of EU citizens can only be transferred from the EU to countries with adequate data protection standards.  Safe Harbour, which was negotiated between the European Commission and the United States Department of Commerce, was one of a number of mechanisms available to EU companies to ensure there was an adequate level of protection when transferring personal data of EU citizens to the United States.  To benefit from Safe Harbour, a company was required to self-certify to the United States Department of Commerce that it complied with specified EU privacy standards. 

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Interlocutory Injunction in Trade-mark Infringement Action Upheld by Federal Court of Appeal

Justine Whitehead and Komil Joshi -

On April 23, 2015, in Jamieson Laboratories Ltd. v. Reckitt Benckiser LLC and Reckitt Benckiser (Canada) Limited 2015 FCA 104, the Federal Court of Appeal upheld a decision granting an interlocutory injunction against a defendant in a trademark infringement suit.  Successful motions for such interlocutory relief are relatively rare in the Federal Court, and this case provides some interesting insight into the type of evidence that might allow a moving party to obtain such relief.

Background Facts

The facts of the case have their origin in activities undertaken in 2012, when Reckitt Benckiser LLC and Reckitt Benckiser (Canada) Limited (Reckitt) decided to enter the North American market in respect of supplements containing omega-3 fatty acids.  In pursuit of this goal, Reckitt engaged both Schiff International, Inc. (Schiff) and Jamieson Laboratories Ltd. (Jamieson) in acquisition talks.

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