As the last few remaining NHL teams battle their way towards the Stanley Cup finals, the Federal Court has ordered Canadian ISPs to begin blocking NHL game streams accused of violating copyright Friday. While Canadian courts have previously recognized the availability of static website blocking (despite CIPPIC's objection), this order is the first of its kind in Canada, as we argued in our intervention. It implements a sophisticated system that relies on a private company to identify allegedly unauthorized streams using automated assessment tools and report these to Canadian ISPs for real-time blocking, and represents the next step and the never-ending expansion of remedies demanded by copyright holders in Canada.
The order adopts a number of safeguards. It will only operate during the remainder of the playoffs, where there are fewer games to monitor and less opportunities for over-blocking. The Court also ordered an independent expert to audit the website blocking initiative. The independent audit will provide critical evidence that will be critical when courts are later asked to extend this remedy. Specifically, if Rogers, Bell, and the other media companies who applied for this order wish to extend its application beyond the 2022 playoff season, the independent audit will need to establish that collateral blocking of legitimate content was minimal and that the blocking was effective in actually increasing legitimate subscriptions rather than simply driving customers to other forms of infringement or adoption of VPN services.
Image source: Stanislav Lvovsky, "Censored", Flickr, September 28, 2015, CC-BY-NC-ND 2.0
CIPPIC has submitted feedback to the Department of Canadian Heritage concerning the proposed legislation to address “harmful content” online. The public consultation was launched right before the federal election was called with a deadline to submit right after the end of the election, causing civil society and academic experts to request a delay to the submission deadline. No deferral was ultimately granted.
In its submission, CIPPIC calls on the Department of Canadian Heritage to reconsider its approach to addressing activity that occurs online, given that the current approach jeopardizes claims that Canada is a global leader of human rights. The submission focuses on problems relating to the law’s scope of application, its demand that platforms block unlawful content within 24 hours of being flagged, as well as alarming requirements for online service providers to proactively monitor and filter content as well as report information on users to law enforcement.
CIPPIC and the Harvard Cyberlaw Clinic are excited to release a report today on the impact of the new United States-Mexico-Canada Agreement (USMCA) on intermediary liability laws in North America. Click here to download the report.
Article 19.17 of the new USMCA contains provisions modeled on Section 230 of the U.S. Communications Decency Act that protect platforms like Facebook and Google from being held liable for harmful or unlawful content posted by their users. While the liability shield the USMCA provides is quite similar to CDA § 230, the provisions differ in that the USMCA permits courts to order injunctions requiring platforms to take down content.
Given the ongoing debate in the U.S. regarding the future of CDA § 230, our report suggests that the USMCA’s approach to intermediary liability could serve as a model for amending CDA § 230, given the balance the USMCA strikes between addressing online harms and protecting platforms.
Our report also outlines how current Canadian intermediary liability laws are inconsistent with the USMCA, as are some recent proposals advanced in Canada to hold social media companies liable for the content they host. Correspondingly, we recommend that careful consideration be given by federal and provincial parliamentarians to introducing legislation to align Canadian law with the USMCA, and that clarifies whether Canadian and third-country intermediaries are entitled to the protections provided by the USMCA.
Our report is the product of an unprecedented cross-border collaboration between technology law clinics in Canada and the United States on a legal issue of significance to citizens of both countries. We hope to expand the coverage of our report to include Mexico in the near future.
CIPPIC was granted leave to intervene before the Federal Court of Appeal in Teksavvy Solutions Inc v Bell Media Inc, FCA File No A-440-19, an appeal of an order compelling Canada's ISPs to block access to a website accused of copyright infringement. The order under appeal is novel, and if approved will have far-reaching implications for free expression and balanced copyright, creating an extraordinary new censorship power that the applicants have sought in trade negotiations, at parliament, and at the CRTC, without success.
The intervention order itself adopts a thoughtful, but decidedly novel approach in its application of the Federal Court of Appeal's uniquely rigorous test for public interest intervention. As set out in CIPPIC's initial motion to intervene, dated February 3, 2020 (paras 5-12) and affirmed by the case management judge in a brief and pointed direction dated April 24, 2020, the test for intervention requires extensive coordination among different public interest interveners to avoid duplication. In light of the interveners' demonstrably successful efforts to coordinate, the Court took the exceptional step of merging many of the parties, allowing CIPPIC to file a joint intervention with our close colleagues at the Canadian Internet Registration Authority (CIRA). The British Columbia Civil Liberties Association (BCCLA) was also granted leave to elaborate on its detailed proposed submissions regarding the need to account for freedom of expression when issuing orders that interfere with access to expressive content. The intervention order is also innovative for its willingness to depart from a categorical approach to classifying proposed interveners, and instead consider the particular characteristics of specific parties and their historical record of intervention. This allows for a more thoughtful and contextual approach to granting intervener status, while interveners will need to be more cautious in implementing the Court's conditions of intervention or risk developing a negative track record and threatening future interventions. Three other parties seeking to intervene on behalf of intellectual property rights holders were also granted leave to intervene, and merged into a single intervention. CIPPIC is represented by Alyssa Tomkins and James Plotkin of Caza Saikaley, SRL/LLP. UPDATE: On August 3, 2020, CIPPIC and CIRA filed their joint Facta. A hearing has not yet been scheduled in this matter.
Image source: Stanislav Lvovsky, "Censored", Flickr, September 28, 2015, CC-BY-NC-ND 2.0
The Electronic Frontier Foundation (EFF) released a timely white paper this week examining the negative implications and chilling effects that various cybercrime provisions throughout the Americas can have on coder's rights and specifically on security researchers. Entitled "Protecting Security Researcher's Rights in the Americas", the analysis explores a range of cybercrime regimes nominally intended in principle to criminalize unauthorized access to or disruption of computer systems. However, these laws have been framed so broadly as to impose a serious chilling effect on vital activity of security researchers. Drawing on the Inter-American human rights framework (of which Canada is a partial adherent), some national jurisprudence, and principles of criminal law, the paper argues for cybercrime regimes that accommodate beneficial security work. There must be latitude for non-malicious security testing, for the dissemination of critical security tools and for the responsible publication of discovered security breaches.
Sadly, current laws are framed so broadly that they have had a serious chilling effect on socially beneficial security work. Those who discover security breaches face severe legal threats and sometimes even criminal consequences for attempting to bring these to host organization's attention. The result is that security breaches are increasingly likely to remain unresolved until they are discovered by someone seeking to exploit, rather than to merely expose. The paper, to which CIPPIC provided substantive contributions, calls for clearer standards to remedy this situation.
Tech Reset Canada, the Digital Justice Lab, and the Centre for Digital Rights have launched a petition calling for a national conversation about digital rights and human rights. CIPPIC has offered its support to the petition along with other members of Canada’s civil society advocating for Canadians’ digital rights.
The petition calls on:
the federal government to convene this national conversation and to respond with a strategy for Canadian digital rights. Such a strategy must include a public education campaign and a consultation process on digital rights, technology ethics, equitable access to the Internet, and the ways these issues impact our quality of life, the governance of our economy, and the safety of our democracy.
Sign the petition:
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.)
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.
