A court in the Northern District of California in Google LLC v. Equustek Solutions Inc. 2017 WL 5000834 (Nov 2, 2017) issued an order earlier this month enjoining Equustek from enforcing the global de-indexing order it obtained against Google in a British Columbia court. This was an order that was given great scrutiny and which was affirmed by the Supreme Court of Canada in Google Inc. v. Equustek Solutions Inc., 2017 SCC 34 (summarized here).
The fall is usually accompanied by some great conferences for tech and communications lawyers. This year is no exception.
The IT.Can 21st Annual Conference will be held on October 23 and 24, 2017 at the St. Andrew’s Club and Conference Centre in Toronto. There are some terrific plenaries and break-out sessions, as usual. This is the best annual conference for Canadian tech lawyers and a great way to catch up on recent developments. The conference brochure and registration information can be found at IT.Can’s website.
I thank the Committee for inviting me here today. What you are doing is very important. CASL is flawed and needs re-examination.
I am a senior partner with the law firm McCarthy Tetrault. I am also an Adjunct professor of intellectual property law at Osgoode Hall Law School and am on the advisory boards of the think tanks Macdonald Laurier Institute (MLI) and CIGI. I am here today in my personal capacity.
Here are my representations sent to Jill Paterson, Senior Policy Analyst, Digital Policy Branch, Spectrum, Information Technologies and Telecommunications (SITT) Sector, Innovation, Science and Economic Development Canada, CD Howe Building, 235 Queen Street, Room 162D, Ottawa, Ontario K1A 0H5.
These are my representations on the draft Breach of Security Safeguards Regulations published in the Canada Gazette, Part I, August 14, 2017.
I am Barry Sookman, a senior Partner with the law firm McCarthy Tétrault. I am also an Adjunct professor of intellectual property law at Osgoode Hall law School where I teach, among other things, privacy law. My firm acts for clients that have important concerns about the draft Regulations. However, I make these representations solely on my own behalf.
The Copyright Board just released its long awaited decision on the scope of the making available right under the Copyright Act. In a well reasoned and thorough decision, the Board ruled that the MAR right applies to the making available of both streams and downloads, acts that have to be exclusive rights in order for Canada to meet its international treaty obligations under the WCT and WPPT.
The Board summarized its reasons as follows:
The Supreme Court of Canada released a landmark decision today ruling that Canadian common law courts have the jurisdiction to make global de-indexing orders against search engines like Google. In so, ordering, the Court in Google Inc. v. Equustek Solutions Inc., 2017 SCC 34 underlined the breadth of courts’ jurisdiction to make orders against search engines to stem illegal activities on the Internet including the sale of products manufactured using trade secrets misappropriated from innovative companies.
I gave my annual presentation today to the Toronto computer Lawyers’ Group on “The year in review in Computer, Internet and E-Commerce Law”. It covered the period from June 2016 to June 2017. The developments included cases from Canada, the U.S. the U.K., and other EU and Commonwealth countries.
The developments were organized into the broad topics of: Online Liability/Intermediary Remedies, Copyright, Trade-marks/Domain Names, Technology Contracting, e-Commerce & Online Agreements, and Canada’s (despised) anti-spam/malware law, CASL
The cases referred to are listed below. My slides can be viewed after the case listing. These and many other cases will be added to my 7 volume book on Computer, Internet and E-Commerce Law (1988-2016).
The decision of the Supreme Court of Canada in the Equustek v Google case is likely going to be an important precedent. It will decide whether a Canadian common law court has the jurisdiction to grant de-indexing orders against search engines to aid in enforcing court injunctions, and if it does, the test to apply in making such orders.
The Supreme Court has invited counsel for the parties to make comments on a possible media lock-up immediately prior to the release of the decision by the court. The purpose of lock-ups, as explained in the court’s procedure, “is to facilitate accurate and informed reporting of the Court’s judgments”.
CASL in its present form was a big mistake. The private right of action (PRA) which was scheduled to come into effect July 1, 2017 would have compounded the adverse effects of this flawed, overly-broad, indefensible, and likely unconstitutional law. See, CASL’s private right of action.
The Government strongly signaled today that it is prepared to fix or at least mitigate some of the excessive elements of the CASL regime. This is something that every sector of the Canadian public including charities, not-for profit and educational institutions, private individuals, small, medium and large businesses, retailers, publishers, financial institutions, technology and telecom companies had been asking for even before CASL came into force. See, Canada’s anti-spam law (CASL), too much of a good thing .