In a 4-3 decision, the Supreme Court of Canada ruled in Douez v Facebook Inc, 2017 SCC 33, that Facebook’s efforts in its terms of service to require Canadians to pursue grievances with Facebook in California courts instead of Canadian courts is unenforceable.

The case involved a class action against Facebook alleging violations of BC's Privacy Act. The class action could not proceed, however, as Facebook argued that its terms of service require disputes to be resolved in California courts and under California law. Historically, the Supreme Court of Canada's jurisprudence favoured enforcement of these “forum selection clauses” on the rationale that holding sophisticated commercial parties to their jurisdictional choices advances the underlying principles that private international law seeks to achieve.

However, online platforms now routinely impose non-negotiable choice of forum and law clauses in their terms of service, which consumers must accept on a take it or leave it basis. This places a heavy burden on individuals, who are left with no option but to enforce their rights in foreign courts and under foreign laws. This is especially problematic where the laws in question implicate constitutionally protected rights are invoked, as different jurisdictions must have leeway to apply different standards of freedom of expression and privacy to their denizens. CIPPIC's intervention therefore argued that enforcing forum selection clauses imposed onto online customers on a non-negotiable basis will undermine the principles of order, fairness and comity which private international law seeks to achieve.

Today marks the launch of the 2017 Google Policy Fellowship (Canada), which will host a Google Policy Fellow at each of Canada's two leading technology research and policy centres - CIPPIC and the Citizen Lab, University of Toronto. CIPPIC's Google Policy Fellow will join our Summer Internship Program and work closely with CIPPIC staff on a range of dynamic, cutting edge law & technology issues as we seek to further our public interest mandate. This includes helping to formulate strategy, conducting research and analysis, and drafting submissions to various levels of court, political and legislative venues, and regulatory bodies. Substantively, CIPPIC advocacy covers a diverse range of digital rights/policy issues, including copyright, privacy/electronic surveillance, telecommunications regulation/net neutrality, online consumer protection, online speech, access to knowledge and more general Internet governance concerns. CIPPIC is strongly committed to a diverse environment, and in particular encourages applications from racialized persons / persons of colour, women, Indigenous / Aboriginal People of North America, persons with disabilities, LGBTQ persons, and others who will enrich our discourse by ensuring it is the product of a diversity of perspectives.

The policy fellow will also participate in our Summer Speaker Series, which brings leading experts in Canadian law & technology fields in to discuss various pressing issues with our students in a closed environment. See past annual bulletins for a list of past speakers, as well as a description of some of our work. Applications are due Friday, April 28, 2017. The fellowship will run for 10 weeks this summer and is open to any law students or law graduate students, with specific times and dates to be coordinated with the host organization. Application details are available at: https://cippic.ca/jobs/google_policy_fellowship_canada_2017.

A NAFTA Arbitration Panel has dismissed Eli Lilly's claim for compensation from the Canadian government for the invalidation of two of its patents by the Supreme Court of Canada.  Lilly claimed that Canada's utility standard under patent law failed to meet its NAFTA obligations, and that the invalidation of its patents amounted to an expropriation that entitled it to a remedy under NAFTA's investor protection provisions.

Lilly's argument sought to leverage international trade investor protection provisions to shape the general contours of substantive intellectual property law.  The Panel rejected that invitation, declining to challenge courts' supervisory role over patentability in the Canadian patent system, stating that "a NAFTA Chapter Eleven tribunal is not an appellate tier" and that it would be inappropriate for a NAFTA tribunal to assess judicial conduct against NAFTA obligations other than in "exceptional circumstances, in which there is clear evidence of egregious and shocking conduct."   

Decision:

• Eli Lilly v Canada 

Previously:

Last month, Public Safety Canada followed through on commitments to review and consult on Canada’s national security framework. The process reviews powers that were passed into law following the passage of Bill C-51, Canada’s recent controversial anti-terrorism overhaul, as well as invite a broader debate about Canada’s security apparatus. While many consultation processes have explored expansions of Canada’s national security framework, the current consultation constitutes the first modern day attempt to explore Canada’s national security excesses and deficiencies. Unfortunately, the framing of the consultation demonstrates minimal direct regard for privacy and civil liberties because it is primarily preoccupied with defending the existing security framework while introducing a range of additional intrusive powers. Such powers include some that have been soundly rejected by the Canadian public as drawing the wrong balance between digital privacy and law enforcement objectives, and heavily criticized by legal experts as well as by all of Canada’s federal and provincial privacy commissioners. The government’s framing of the issues are highly deficient. Specifically, the consultation documents make little attempt to explain the privacy and civil liberties implications that can result from the contemplated powers. And while the government is open to suggestions on privacy and civil liberties-enhancing measures, few such proposals are explored in the document itself. The consultation documents also fail to provide detailed suggestions for improving government accountability and transparency surrounding state agencies’ use of already-existent surveillance and investigative tools. 

In light of these deficiencies, we will be discussing a number of the consultation document’s problematic elements in a series of posts authored in conjunction with Christopher Parsons at the Citizen Lab, beginning with today's installment (after the jump, or in PDF format) regarding the government’s reincarnation of a highly controversial telecommunication subscriber identification power.