Privacy Law – Law is Cool The law school blog and podcast from Canada Wed, 30 Sep 2015 13:10:01 +0000 en-US hourly 1 1338880 Droning On reported by LEO TAM Mon, 02 Jun 2014 06:46:08 +0000 In Droning On, Charlotte Sandry introduced readers to the challenges posted by Unmanned Aerial Vehicles (UAVs) posted to existing Canadian nautical regulations and to privacy breach issues.

Canadian public is cautious about the growing use of UAV (unmanned aerial vehicle) by the state and the business community, especially in the field of energy sector where vast distance is required to cover for security surveillance and maintenance needs, according to Winnepeg aviation lawyer Joe Barnsley.  The benefits of UAVs is obvious in terms of speed and safety (at least for the operator). Charlotte Sandry, too, believed that Canadian vast landscape offers an opportunity for widespread use of UAV in the area of navigation mapping, search-and-rescue, resources exploration, traffic and utilities facilities monitoring, as well as security surveillance. However, Barnsley cautioned that Canadian aviation regulations lag behind the growing use of UAVs.

According to Barnsley, the current Canadian Aviation regulation classified UAVs as an aircraft without human onboard to control it. There are only two categories of aeronautical regulations (under the Aeronautics Act) administered by Transport Canada that is based on aircrew certification and aircraft certification. Aircrew certification is licensing to an individual based on the type of platform he/she flies. It can be a conventional aircraft, glider, balloon, gyroplane, helicopter or an ultra-light airplane. The other one is classification of the flying platform itself based on intended use (as aerobatics or utility for example). None of the two existing classifications apply to the use of UAVs. The only regulation that remotely applies to the use of UAVs can be found in Transport Canada website as “special flight operations or air operator certificate”. Applicant to the aforementioned certificates must provide a detail flight plan and contingency (with emergency) plan on a case by case basis. According to Transport Canada, it takes at least 20 days to process and to review the application for the special flight operation certification. According to Sarah Fitzpatrick and Kenneth Burnett, from Miller Thomson LLP in Vancouver, suggested that application for UAVs use under those condition will be very inefficient and impractical because “a lot of jobs are date-specific and if each job requires a separate SFOC, then there is a possibility that a SFOC will not be issued in time.”

Safety is also another issue with the impending proliferation of UAVs, according to Joe Barnsley because there is no standardize test for fit of the UAVs or the person who is controlling it, air space navigation and midair collision with an aircraft can be problematic. Current aviation legislation has no coverage of UAVs in those aspects. Charlotte Sandry’s offered a limited degree of reassurance when Transport Canada admitted that the regulatory system and industry technology is unprepared to accept the pending widespread use of UAVs in the civilian market. There were two working reports done by the Federal Government since 2007 recognizing the economic benefits from the use of UAVs commercially and the need for a comprehensive legal framework to exploit the proliferation of commercial UAVs use (with final report due in 2017).

Privacy is always an issue for obvious reason. A report dated March 2013 from the Office of the Privacy Commissioner of Canada highlighted the danger of invasion of privacy when an UAV’s takes aerial video or photographs without the public’s consent or acknowledgment. Existing Personal Information Protection and Electronic Documents Act is insufficient for privacy protection because the Act does not apply to data collection by covert operation (of UAVs). The Office said the public is rightfully concerned when real estate agents or T.V. producers rely on UAVs to produce advertisement without their knowledge or consent. Similarly, fear for privacy breach occurs when Amazon’s UAVs pointed their camera to people’s window for checking if people are at home to ensure delivery or recording people’s absence for delivery charge. Another major area of concern for privacy breach is when facial recognition and enhancing features are administered to data covertly collected by law enforcement agencies operated UAVs.   One privacy lawyer David Fraser, a partner at McInnes Cooper’s Halifax office, suggested that the use of UAVs in surveillance is not the problem but it is how the data are collected and stored will be a privacy and legal issue.

Charlotte Santry concluded that there is a lot to catch up with our privacy and aviation laws. UAVs technology are here to stay and expanding, it provides a lot of cases for legal practitioners to work on when privacy, transportation and aviation matters are at stakes.



Canadian Lawyer. (2014). Droning On. Retrieved from

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Appointment of Daniel Therrien Thu, 29 May 2014 19:43:18 +0000 –  Ann Barrow, Paralegal Student, Centennial College

“Is the Fox Guarding the Hen House?”


  • Stephen Harper nominated Daniel Therrien, current Assistant Deputy Solicitor General, for the position of privacy watchdog.
  • Not merely a political issue– its impact on privacy issues is paramount.


  • As the author of the article states:  “Therrien is the Justice Department’s point man on matters of national defense, public safety and immigration law.”
  • As such, he has the experience required to protect Canadian citizen’s personal identity issues.  Whether or not this will happen is at issue.


  • Michael Geist believes that “the jury is still out,” but what is clear is that the Harper government is “sending a message.”
  • Exactly to whom this message is directed is not stated.
  • Therrien’s experience with negotiating cross-border information sharing with the United States is considered suspect by some.
  • Jennifer Stoddart, the previous privacy commissioner, raised issues over the content of the cooperative sharing of information with the States.

Citizen’s Privacy Protected?:

  • The Privacy Act, R.S.C., 1985, c. P-21.,  addresses issues of the collection and retention of personal information.
  • How Therrien maintains the right of citizens to access and control their information collected by the government is in question.
  • Boutilier maintains that the “opposition parties have already signaled that they do not approve of Therrien’s appointment,” citing his lack of “neutrality” and “detachment” given his previous positions and political career.
  • Thomas Mulcair, NDP Leader, wrote to Harper on May 23 to protest the appointment:  “As the main person in charge of protecting Canadians’ privacy, the commissioner is responsible for auditing the policies and practices enacted by the government.”
  • Mulcair also notes that Therrien developed government initiatives on public safety that were criticized for “their failure to protect our fundamental rights.”

Forecast Uncertain:

  • In the current political climate, both domestic and foreign, it will be interesting to see how this appointment, if passed, will bode for the Canadian public.

“Harper nominates next privacy watchdog” by Alex Boutilier, Toronto Star, May 29, 2014, s. A3.

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Access Copyright: Outrageous and Unnecessary Wed, 09 Feb 2011 00:35:14 +0000 As a UWO student (and at many other Canadian universities,) you automatically pay an annual fee to an organization called Access Copyright. An item is included in your student activity fee, and it used to be $3.38 per student per year, plus an amount based on the number of photocopies made at library photocopy machines. However, when the licence agreement expired last year, Access Copyright did not seek to renegotiate with UWO. Instead, it applied to the Copyright Board for a massive restructuring of the agreement. If the Board approves the request, Access Copyright would receive $45 per student per year. With 30,000 full-time students, this amounts to $1.35 million annually. But that’s not all. Access Copyright would also have the right to surveillance: Section 14 (4) of the proposed licence agreement states that:

The Educational Institution shall give Access Copyright, on reasonable notice, right of access through-out the Educational Institution’s premises in order to organize and carry out an audit, including full access to the Secure Network and all Course Collections.

This would include access to university email accounts.

There are a number of problems with the Access Copyright regime. First of all, every university student is presumed to be infringing copyright and this seems very unlikely given the Fair Dealing rights in the Canadian Copyright Act that expressly permit the copying of non-substantial portions of a work for the purpose of private study. As well, the university is presumed to be responsible for the presumed copyright infringement by students. This is contrary to the Supreme Court of Canada’s decision in CCH Canadian Limited v. Law Society of Upper Canada, [2004] 1 S.C.R. 339.CCD, which held that a library is NOT responsible for copyright infringement merely by providing access to photocopiers.

What is more troubling, though, is that by paying Access Copyright, our fair dealing rights become meaningless.

We are paying even though there is probably not much substantial copying taking place, and if this becomes the norm, fair dealing rights could be removed from the Copyright Act for the simple reason that no one behaves as if there is such a thing. Access Copyright denies flatly that they want to charge for non-substantial copying, but this does not square with the section 3 of the proposed licence agreement:

3. Subject to compliance with each of the conditions in Sections 4 and 5, this tariff entitles an Authorized Person for Authorized Purposes only, to
(a) make a Copy of up to ten per cent (10%) of a Repertoire Work;
(b) make a Copy of up to twenty per cent (20%) of a Repertoire Work only as part of a Course Collection; or
(c) make a Copy of a Repertoire Work that is

(i) an entire newspaper or periodical article or page,
(ii) a single short story, play, poem, essay or article,
(iii) an entire entry from an encyclopaedia, annotated bibliography, dictionary or similar reference work,
(iv) an entire reproduction of an artistic work (including a drawing, painting, print, photograph and    reproduction of a work of sculpture, an architectural work of art and a work of artistic craftsmanship), and
(v) one chapter, provided it is no more than twenty per cent (20%) of a book.

How else can this provision be interpreted? The university would be paying for permission to make non-substantial copies which are permitted without payment under the Copyright Act. We would be paying for our Fair Dealing rights.

Another problem is the bully-factor. This organization is not negotiating in good faith with the University, but threatening law suits instead and negotiating via an application to the Copyright Board – a rather passive-aggressive manoeuvre. By paying this organization, we are enabling it with massive financial resources and providing an enormous financial incentive to ‘discover’ new ways to ‘extort’ funds from university students … and the justifications can be based upon the results of spying on our email accounts.

The Access Copyright regimes treats scholarly works as if they were pop-songs broadcasted on the radio for a big fat profit when in fact University libraries are expensive, profitless resources for private study. The vast majority of scholarly works in these libraries are written by university professors and graduate students who aren’t looking for royalties. The main policy reason behind Fair Dealing rights is to prevent copyright law from inhibiting the intellectual development and sharing of knowledge within our society. The entire Access Copyright regime is an effort to push back against this reasoning. It is a kind of intellectual enclosure movement.

The University of Western is committed to this regime going forward. It proactively collected $15 per student last September on the assumption that the Copyright Board would ordain a fee of something less than $45 per student but substantially more than the $3.38 under the expired agreement. By doing so, UWO demonstrated its willingness to accept the surveillance, and the presumption of copyright infringement and the presumption of legal responsibility for the infringement.

The university has a choice. The licence agreement is optional and UWO can walk away from it. It would make much more sense to charge students a modest fee which would go to the libraries to implement procedures and negotiate licence agreements with publishers to ensure that students have the resources they need without exposing the University to the risk of law suits. If CCH has any force, Access Copyright is on very shaky legal ground. Quite simply, we don’t need Access Copyright.

NOTE: Access Copyright is trying to force all universities to sign on. Get informed & get involved. Join the FaceBook group ‘Fair Copyright Western

For more information:

What legal scholars are saying:

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Free Internet to Citizens of Oppressed Nations: Genuine Interest in Democracy or Attempts to Monopolize Information? Sat, 08 Jan 2011 18:21:31 +0000 Uncle Sam has $30M to bypass Chinese, Iranian ‘Net filters

By Nate Anderson

Need to get around a Chinese government firewall? Burning to smuggle your samizdat writings past Iranian Internet censorship? Hoping to blog with impunity in Burma? Uncle Sam wants to help. The US government has a $30 million pot of money to spend on “Internet freedom” programs around the world, and it’s not afraid to make a few enemies.
Secretary of State Hillary Clinton last year gave a major speech on Internet freedom and the new “Information Curtain” of censorship that has fallen in some parts of the world. In that speech, she said that State would support development of tools that can bypass Internet censorship. She also outlined a program in which State would fund mobile phone apps that allow people to rate government ministries on responsiveness and efficiency and that can ferret out corruption through crowdsourcing. The hardware is already in the wild, she said; all what’s needed is some money to make it worth developers’ time.
This year, State has $30 million for such projects, and it’s asking interested parties to apply for the cash. Top on its list of wants: “counter-censorship technology” that can bypass firewalls and filters. Such tools may be general (like Tor) or can be specific to individual governments. China and Iran can probably look forward to some US-funded encryption and circumvention tools coming their way in the near future.
The grants will focus on “East Asia, including China and Burma; the Near East, including Iran; Southeast Asia; the South Caucasus; Eurasia, including Russia; Central Asia; Latin America, including Cuba and Venezuela; and Africa.” North America and Western Europe get a pass.
In addition to circumvention tools, State wants to fund secure mobile communications tech that can make mobile phone usage safer. The government will also help nonprofits and digital activists build communication platforms, and it wants to establish “virtual open Internet centers” that exist outside of closed countries and provide a spot to post and archive censored content.
If you’re part of a nonprofit or a university (and are not an affiliate of a “designated terrorist organization”), you have a month to submit an online statement of interest.



Interesting comment by a reader:
“govt, doesnt give anything away to anyone (except themselves and their filthy bosses).

it smells like a trick to start the censorship and as usual in the name of democracy.
I had heard many years ago that they are planning to introduce the Internet 2 and shut this one down.

in any case the problem in USA and the West is Not the censorship the problem is Monopoly on info!
the rest of the world gets its info from this monopolized source!”

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Julian Assange: Why the world needs WikiLeaks Sat, 11 Dec 2010 19:14:59 +0000 For video click here

Call for Participation: Cyber-Surveillance in Everyday Life: An international workshop Wed, 25 Aug 2010 23:24:00 +0000 Call for Participation

Cyber-Surveillance in Everyday Life: An international workshop

May 12-15, 2011, University of Toronto, Canada

Digitally mediated surveillance (DMS) is an increasingly prevalent, but still largely invisible, aspect of daily life. As we work, play and negotiate public and private spaces, on-line and off, we produce a growing stream of personal digital data of interest to unseen others. CCTV cameras hosted by private and public actors survey and record our movements in public space, as well as in the workplace. Corporate interests track our behaviour as we navigate both social and transactional cyberspaces, data mining our digital doubles and packaging users as commodities for sale to the highest bidder. Governments continue to collect personal information on-line with unclear guidelines for retention and use, while law enforcement increasingly use internet technology to monitor not only criminals but activists and political dissidents as well, with worrisome implications for democracy.

This international workshop brings together researchers, advocates, activists and artists working on the many aspects of cyber-surveillance, particularly as it pervades and mediates social life. This workshop will appeal to those interested in the surveillance aspects of topics such as the following, especially as they raise broader themes and issues that characterize the cyber-surveillance terrain more widely:

  • social networking (practices & platforms)
  • search engines
  • behavioural advertising/targeted marketing
  • monitoring and analysis techniques (facial recognition, RFID, video analytics, data mining)
  • Internet surveillance (deep packet inspection, backbone intercepts)
  • resistance (actors, practices, technologies)

A central concern is to better understand DMS practices, making them more publicly visible and democratically accountable. To do so, we must comprehend what constitutes DMS, delineating parameters for research and analysis. We must further explore the way citizens and consumers experience, engage with and respond to digitally mediated surveillance. Finally, we must develop alliances, responses and counterstrategies to deal with the ongoing creep of digitally mediated surveillance in everyday life.

The workshop adopts a novel structure, mainly comprising a series of themed panels organized to address compelling questions arising around digitally mediated surveillance that cut across the topics listed above. Some illustrative examples:

  1. We regularly hear about ‘cyber-surveillance’, ‘cyber-security’, and ‘cyber-threats’. What constitutes cyber-surveillance, and what are the empirical and theoretical difficulties in establishing a practical understanding of cyber-surveillance? Is the enterprise of developing a definition useful, or condemned to analytic confusion?
  2. What are the motives and strategies of key DMS actors (e.g. surveillance equipment/systems/ strategy/”solutions” providers; police/law enforcement/security agencies; data aggregation brokers; digital infrastructure providers); oversight/regulatory/data protection agencies; civil society organizations, and user/citizens?
  3. What are the relationships among key DMS actors (e.g. between social networking site providers)? Between marketers (e.g. Facebook and DoubleClick)? Between digital infrastructure providers and law enforcement (e.g. lawful access)?
  4. What business models are enterprises pursuing that promote DMS in a variety of areas, including social networking, location tracking, ID’d transactions etc. What can we expect of DMS in the coming years? What new risks and opportunities are likely?
  5. What do people know about the DMS practices and risks they are exposed to in everyday life? What are people’s attitudes to these practices and risks?
  6. What are the politics of DMS; who is active? What are their primary interests, what are the possible lines of contention and prospective alliances? What are the promising intervention points and alliances that can promote a more democratically accountable surveillance?
  7. What is the relationship between DMS and privacy? Are privacy policies legitimating DMS? Is a re-evaluation of traditional information privacy principles required in light of new and emergent online practices, such as social networking and others?
  8. Do deep packet inspection and other surveillance techniques and practices of internet service providers (ISP) threaten personal privacy?
  9. How do new technical configurations promote surveillance and challenge privacy? For example, do cloud computing applications pose a greater threat to personal privacy than the client/server model? How do mobile devices and geo-location promote surveillance of individuals?
  10. How do the multiple jurisdictions of internet data storage and exchange affect the application of national/international data protection laws?
  11. What is the role of advocacy/activist movements in challenging cyber-surveillance?

In conjunction with the workshop there will be a combination of public events on the theme of cyber-surveillance in everyday life:

  • poster session, for presenting and discussing provocative ideas and works in progress
  • public lecture or debate
  • art exhibition/installation(s)

We invite 500 word abstracts of research papers, position statements, short presentations, works in progress, posters, demonstrations, installations. Each abstract should:

  • address explicitly one or more “burning questions” related to digitally-mediated surveillance in everyday life, such as those mentioned above.
  • indicate the form of intended contribution (i.e. research paper, position statement, short presentation, work in progress, poster, demonstration, installation)

The workshop will consist of about 40 participants, at least half of whom will be presenters listed on the published program. Funds will be available to support the participation of representatives of civil society organizations.

Accepted research paper authors will be invited to submit a full paper (~6000 words) for presentation and discussion in a multi-party panel session. All accepted submissions will be posted publicly. A selection of papers will be invited for revision and academic publication in a special issue of an open-access, refereed journal such as Surveillance and Society.

In order to facilitate a more holistic conversation, one that reaches beyond academia, we also invite critical position statements, short presentations, works-in-progress, interactive demonstrations, and artistic interpretations of the meaning and import of cyber-surveillance in everyday life. These will be included in the panel sessions or grouped by theme in concurrent ‘birds-of-a-feather’ sessions designed to tease out, more interactively and informally, emergent questions, problems, ideas and future directions. This BoF track is meant to be flexible and contemporary, welcoming a variety of genres.

Instructions for making submissions will be available on the workshop website by Sept 1.

See also an accompanying Call for Annotated Bibliographies, aimed at providing background materials useful to workshop participants as well as more widely.



  • Oct. 1: Abstracts (500 words) for research papers, position statements, and other ‘birds-of-a-feather’ submissions
  • Nov. 15: Notification to authors of accepted research papers, position statements, etc. Abstracts posted to web.


  • Feb. 1: Abstracts (500 words) for posters
  • Mar. 1: Notification to authors of accepted posters.
  • Apr. 1: Full research papers (5-6000 words) due, and posted to web.
  • May 12-15 Workshop

Sponsored by: The New Transparency – Surveillance and Social Sorting.

International Program Committee: Jeffrey Chester (Center for Digital Democracy), Roger Clarke (Australian Privacy Foundation), Gus Hosein (Privacy International, London School of Economics), Helen Nissenbaum (New York University), Charles Raab (University of Edinburgh) and Priscilla Regan (George Mason University)

Organizing Committee: Colin Bennett, Andrew Clement, Kate Milberry & Chris Parsons.

Canadians have a constitutional right to government-held info: SCC Sat, 31 Jul 2010 14:13:29 +0000 According to a recent ruling of the SCC, the right to access to government records is now protected by the Charter. In a unanimous 7-0 ruling in Ontario (Public Safety and Security) v. Criminal Lawyer’s Association, [2010] S.C.J. No. 23, the SCC decided that if the information is needed to promote “meaningful public discussion on matters of public interest”, Canadians have an access right to that information, guaranteed by s. 2(b) of Charter under the heading “Fundamental Freedoms”.

The Criminal Lawyer’s Association (CLA) called this “an epic win”, that ensued after a decade-long battle for access to a 300-page review conducted by the OPP with regards to how the Hamilton and Halton police “handled the investigation of the 1983 murder of Toronto mobster Dominic Racco. Mr. Racco was shot and killed on December 1983 and his body was dumped on a Milton rail line. Two Hamilton men, Garaham Court and Dennis Monaghan were charged consequently by Hamilton Police. They had the charges stayed in 1997 after Justice Stephen Glithero of the Ontario Superior Court found evidence of “flagrant and intentional misconduct” by the Crown and Halton and Hamilton police in the process. An investigation by the OPP ensued that resulted in the review but it was not made public despite CLA’s request. The denial of the government to force the OPP to release the review was basically what fuelled the legal action taken by the CLA that was eventually granted the right to appeal by the SCC.

Although, the CLA found the ruling, an epic victory, it was not granted the right to access the information in the OPP review. The SCC, in turn, held that right to access could only be triggered when the information sought “is necessary for meaningful public discussion on matters of public interest”. In matters where the release of information may “interfere with the proper functioning of the governmental institution in question”, or where they are shielded by solicitor-client privilege, such rights are not guaranteed to the public.

For one, the SCC held that the review may contain information about the parties that are protected by the solicitor-client privilege. Furthermore, it was decided that CLA has failed to demonstrate that “meaningful public discussion of shortcomings in the investigation and prosecution could not take place without making the OPP report public”. Yet, the Supreme Court sent back the CLA’s request to the information commissioner for a fresh review. Yet, the ruling was described as “a baby step toward recognizing that access to information is a constitutional right” by Paul Schabas of Blake, Cassels & Graydon LLP.

Many countries including UK and US have similar laws implemented in their laws. Sweden, embedded access to information laws in their legislation in 1766 via their Freedom of the Press Act. The British Freedom of Information Act (2000), implemented such rights into the country’s legal system. In Canada, the Access to Information Act grants citizens access to records held by federal bodies and Freedom of Information and Protection of Privacy Act is the legislation that governs matters that come under the scope of the Ontario provincial government. The significance of this “baby-step” is of course in having the access to information right established as constitutional rather than statutory.

Read this article by Dan Michaluk and Paul Broad of Hicks Morley for further analysis of how this case impacts the government institutions.

Photo: Dominic Racco

Privacy Issues in the Workplace Thu, 13 May 2010 00:40:25 +0000 Key Issues In Workplace Privacy

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Warman v. Fournier et al: Balancing Disclosure, Privacy, and Freedom of Expression Interests in Internet Defamation Cases Tue, 04 May 2010 12:04:27 +0000 While the internet provides users with an environment in which socially valuable anonymous speech can flourish, it also provides users with an opportunity to defame others behind a shield of anonymity. If these users can be identified, they may be held liable for defamation. Unfortunately for plaintiffs, the identities of these individuals are usually known only by the website or internet service provider (“ISP”) through which the statements were made, and these entities generally decline to disclose a user’s identity in the absence of a court order compelling them to do so. Faced with a growing stream of plaintiffs who seek these kinds of orders, courts have sought to craft approaches to evaluating applications for disclosure that strike an appropriate balance between the privacy interests of anonymous internet posters and the reputational interests of plaintiffs.

Yesterday, the Ontario Divisional Court released its decision in Warman v. Fournier et al, 2010 ONSC 2126 (Div. Ct.) rev’g (2009), 309 D.L.R. (4th) 227, 76 C.P.C. (6th) 155 (Ont. S.C.J.) (“Warman”). At issue was whether the disclosure provisions of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”) automatically entitle plaintiffs in internet defamation cases to obtain the identifying information of anonymous posters from websites and ISPs, or whether courts must balance the interests of plaintiffs with the freedom of expression and privacy interests of anonymous posters. The decision is now the leading authority in Ontario for the proposition that the objectives of the disclosure obligations under the Rules must be balanced with the right of freedom of expression in internet defamation cases. This article discusses the background, holding, and implications of Warman.

1. Background

The Respondent commenced an action against the Appellants, the operators of an internet message board, and eight anonymous message board participants with respect to a series of allegedly defamatory postings. After commencing the action, the Respondent brought a motion for an order compelling the Appellants to comply with Rule 76.03 of the Rules which required the Appellants to file an affidavit of documents that disclosed the email and internet protocol (“IP”) addresses of the anonymous posters in order to allow the Respondent to identify the posters and serve them with the statement of claim.

The motions judge rejected the Appellants’ submission that the Respondent was required to establish a prima facie case of defamation before disclosure could be ordered. Instead, Justice Kershman concluded that Rule 76.03 of the Rules required the Appellants to disclose all documents in their power or control and that such disclosure should be automatic upon the issuance of a statement of claim because the information was relevant and not protected by privilege.

This decision stood in stark contrast with earlier cases that offered some protection to the privacy interests of internet users by requiring plaintiffs to demonstrate a bona fide or prima facie case of defamation before ordering disclosure (see: previous posting). The motions judge distinguished these cases on the basis that the Respondent was seeking to compel the Appellants to follow the Rules as required by named parties to the action, whereas the other cases involved discretionary orders for the production of documents from third parties.

2. Holding on Appeal

The Divisional Court unanimously allowed the appeal and remitted the matter to a different motions judge for re-consideration, recognizing that the anonymous posters’ right of freedom of expression under the Charter should have been taken into account in considering the Respondent’s request for disclosure under the Rules. Moreover, the Court noted that the posters’ express decisions to remain anonymous gave them a reasonable expectation of privacy that weighed in their favour.

In rejecting the notion that disclosure should be automatic, the Court also expressed concern for the ease by which a plaintiff could abuse the Rules by filing claims in a spurious manner simply to identify an anonymous poster:

If disclosure were automatic, a plaintiff with no legitimate claim could misuse the Rules of Civil Procedure by commencing an unmeritorious action for the sole purpose of revealing the identity of anonymous internet commentators, with a view to stifling such commentators and deterring others from speaking out on controversial issues. For this reason, the commencement of a defamation claim does not trump freedom of expression or the right to privacy.

[Warman, at para. 33]

After surveying previous decisions, Justice Wilton-Siegel set out four considerations, aimed at preventing abuse of the Rules and respecting the privacy of internet users, that should have been considered by the motions judge in deciding whether to order disclosure under the Rules

  • whether the unknown alleged wrongdoer could have a reasonable expectation of anonymity in the particular circumstances; 
  • whether the Respondent has established a prima facie case against the unknown alleged wrongdoer and is acting in good faith; 
  • whether the Respondent has taken reasonable steps to identify the anonymous party and has been unable to do so; and 
  • whether the public interests favouring disclosure outweigh the legitimate interests of freedom of expression and right to privacy of the persons sought to be identified if the disclosure is ordered.

[Warman, at para. 34]

In concluding that plaintiffs should be required to meet a prima facie standard rather than a lower bona fide standard, the Court emphasized the importance of protecting freedom of expression and noted that there was no concern that the higher standard would deprive applicants of a remedy:

In para. 34 of BMG [2005 FCA 193], the Federal Court of Appeal expressed the concern that, in that case, imposition of a prima faciecase standard would effectively strip an applicant of a remedy because the plaintiff could not know the actual case it wished to assert against the defendants until it knew not only their identities but also the nature of their involvement in the [internet] file-sharing activities. Because the present proceeding is a defamation action, that concern does not arise. Unlike BMG, the respondent knows the details of precisely what was done by each of the unknown alleged wrongdoers. 

In addition, because this proceeding engages a freedom of expression interest, as well as a privacy interest, a more robust standard is required to address the chilling effect on freedom of expression that will result from disclosure. It is also consistent with the recent pronouncements of the Supreme Court that establish the relative weight that must be accorded the interest in freedom of expression. In the circumstances of a website promoting political discussion, the possibility of a defence of fair comment reinforces the need to establish the element of defamation on a prima facie basis in order to have due consideration to the interest in freedom of expression. On the other hand, there is no compelling public interest in allowing someone to libel and destroy the reputation of another, while hiding behind a cloak of anonymity. The requirement to demonstrate a prima facie case of defamation furthers the objective of establishing an appropriate balance between the public interest in favour of disclosure and legitimate interests of privacy and freedom of expression.

[Warman, at paras. 41 – 42]

3. Implications

Warman represents an important recognition that while internet users’ anonymity ought not to be protected absolutely, the mere commencement of a defamation action should not give rise to an automatic entitlement to information identifying a previously anonymous poster without a consideration of the interests of privacy and freedom of expression.

Nevertheless, there is still uncertainty with respect to the degree of protection that courts will afford to anonymous posters in the future. Under Canadian law, plaintiffs have two ways to seek disclosure in internet defamation cases. Apart from identifying anonymous defendants by seeking pre-action discovery or production of relevant information under procedural rules, as occurred in Warman, plaintiffs may also bring independent actions for disclosure of the identity of anonymous defendants by way of an equitable bill of discovery known as a “Norwich order”. Norwich orders were introduced in the decision of the House of Lords in Norwich Pharmacal Co. v. Customs and Excise Commissioners, [1974] A.C. 133 (H.L.) in which it was held that where a third party becomes involved in the tortious acts of others, that third party has a duty to disclose the identity of the tortfeasor so that the plaintiff may pursue its remedies. The Norwich factors were recently confirmed by the Ontario Court of Appeal in GEA Group AG v. Flex-N-Gate Corporation, 2009 ONCA 619 and applied in the internet defamation context by the Ontario Superior Court of Justice in York University v. Bell Canada Enterprises (2009), 311 D.L.R. (4th) 755 (Ont. S.C.J.) (“York University”): 

  • whether the applicant has provided evidence sufficient to raise a valid, bona fide or reasonable claim; 
  • whether the applicant has established a relationship with the third-party from whom the information is sought, such that it establishes that the third party is involved in the acts; 
  • whether the third party is the only practicable source of the information; 
  • whether the third party can be indemnified for costs to which it may be exposed because of the disclosure; and 
  • whether the interests of justice favour obtaining the disclosure. 

[York University, at para. 13]

Although the second and fourth Norwich factors were not relevant in Warman because they apply only to third party respondents rather than co-defendants [see Warman, at para. 39], some of the other Norwich factors are similar to the considerations set out in Warman that are now applicable to the question of whether a court should order disclosure under the Rules. However, an important difference remains. While the approach under Warman requires plaintiffs to demonstrate a prima facie case of defamation, Norwich jurisprudence has required plaintiffs to meet the lower bona fide standard. For example, even though the plaintiff in York University managed to establish a prima facie case of defamation, the court did not require the plaintiff to demonstrate more than a bona fide case. Although Warman provides compelling reasons to prefer the higher prima facie standard where the plaintiff seeks disclosure through a Norwich order, it remains open for courts to require plaintiffs to meet the lower standard instead.

Originally posted on Defamation Law Blog

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Better than Body Scanners Fri, 08 Jan 2010 20:24:09 +0000 Despite all the hype about body scanners, there are some very significant limitations to their use.

One issue is limitation of use on children, which can violate child pornography laws. Statements by Canadian officials that there haven’t been any incidents involving children yet is not very reassuring, especially in this industry where mitigation and prevention are the appropriate benchmarks.

A more significant concern is that body scanners is that they are not very effective for ingested or internally placed hazards (i.e. other cavities).

Wired has a technological solution that would address these concerns, without the same privacy issues, through diffraction-enhanced X-ray imaging (DEXI).

Although some may protest the additional radiation exposure, it’s a valid trade-off in my opinion.  Depending on the duration and frequency of flights,  many travelers would have more radiation exposure from flying than these machines.  My radiation exposure working in diagnostic imaging was frequently lower than commercial airline employees.


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