The “anti-spam” portion of Canada’s anti-spam/spyware law (CASL) comes into effect on July 1, 2014. Most organizations are having very difficult times adapting to CASL’s confusing and prescriptive rules. According to a recent mini-survey conducted by the Canadian Chamber of Commerce of over 160 of its members, from responses to questions answered over 90% of Canadian organizations believe that CASL should be scrapped, amended, or at least be subject to a Parliamentary review before it becomes law. Over 80% believe it will not be effective against the most harmful sources of spam. 63% believe that it will make business more difficult for them. Most believe CASL’s consent, disclosure and unsubscribe requirements are disproportionate and unreasonable. 56% believe CASL will impede the creation of a business environment driven by entrepreneurs that encourages jobs, growth and long term prosperity for Canadians.
The Supreme Court of the United States ruled in a 6 to 3 opinion yesterday that Aereo’s Internet retransmission service infringes copyright. Aereo had tried to architect its television restransmission system to avoid paying copyright royalties or license fees by “renting” dime sized antennae to subscribers. Judge Chin of the US Second Circuit Court of Appeals had called Aereo’s service “a Rube Goldberg-like contrivance, over-engineered in an attempt to avoid the reach of the Copyright Act and to take advantage of a perceived loophole in the law.” In American Broadcasting Cos. v. Aereo, Inc., the SCOTUS agreed telling Aereo essentially, it looked like a cable retransmitter, it acted like a cable retransmitter, Congress had specifically amended the Copyright Act to ensure that cable retransmitters publically performed when they delivered programming to subscribers, and that Aereo’s service was indistinguishable in any meaningful way from those services.
Many businesses are in the midst of trying to become CASL compliant. They hate it. As I explained in a previous post, CASL will hit the SME sector very hard. According to a recent article about it in the Globe:
Marketers big and small facing this legislative change are criticizing it as costly to implement, penalizing to small businesses, and not targeted enough at the spammers who are the real problem in the world of e-mail advertising.
The Government announced today that the notice and notice regime established under C-11 is coming into force in January 2015. The delay in bringing these provisions into force was a consultations on possible regulations that the regime permitted. The Government announced that the provisions are coming into force without regulations.
The regime permits copyright owners to send notices to internet service providers and other internet intermediaries claiming infringement of copyright. The notices must be passed on by these service providers to their users. Because there are no regulations, the notices must be processed and passed on by the internet intermediaries without any fees payable by copyright owners.
Earlier today, the Supreme Court released a landmark decision dealing with privacy on the Internet. The main issue in R v Spencer 2014 SCC 43 was whether a user of the Internet has a reasonable expectation of privacy in his or her basic subscriber information held by the user’s ISP that prevents the police from obtaining this information from the ISP without a warrant or court order. Prior to the decision some courts had ruled that ISPs could turn over subscriber contact details associated with the person’s IP address to police without a warrant or court order. The Court rejected this line of cases ruling that a person has a reasonable expectation of privacy associated with Internet activities and that the “lawful authority” exemption in PIPEDA does not create a basis to turn such information to the police.
The CRTC has published materials recently used in public Information Sessions on Canada’s Anti-Spam Legislation (CASL). The materials consist of a video and transcript of one of the information sessions as well as slides. The transcript did not include answers given to questions from the public at the information sessions.
Much of the information provided had already been published by the Commission. However, some of the information was new or had elements that were new. The following are some examples.
Earlier today, I gave my annual presentation to the Toronto Computer Lawyers’ Group on developments in Computer, Internet, and e-commerce Law. The slides cover the period from my last presentation in June 2013, Developments in Computer, Internet and E-Commerce Law (2012-2013).
The cases summarized in the slides below canvass developments in a number of countries and include cases from Canada, United States, and the EU.
(AOM) NA Inc. et al v. Reveal Group, 2013 ONSC 8014
Canadian Lawyer has announced the candidates nominated for the fifth annual Canadian Lawyer’s Top 25 Most Influential. Again this year, it will be picking the top 5 lawyers in 5 categories. I am nominated in the “Corporate-commercial” category. (Candidates have been placed in a category relating to their nomination, not necessarily reflecting their main area of practice.) You can cast your vote until June 9.
The Canadian Government has now deposited instruments of ratification as the final steps to ratifying the WIPO Performances and Phonograms Treaty (WPPT) and the WIPO Copyright Treaty (WCT). Most of the amendments to implement the treaty provisions went into effect in November 2012 when The Copyright Modernization Act was proclaimed into force. Some of the provisions pertaining to the WPPT including the making available right for sound recordings will only come into effect when the treaty ratification process is final. This will occur on August 13, 2014, 90 days after the deposit of the WPPT instruments of ratification with WIPO.
In a bombshell opinion released earlier today, the CJEU ruled that Google Inc. is subject to EU data protection laws even where its servers are located outside of the EU. The Court ruled that when Google spiders the web and indexes the globe’s data, it is a processor with respect to personal information and a controller of such information. In the case before the Court, this meant that Google was required to de-index links to personal information, even though the information was accurate and without any showing that making the information available was prejudical to the data subject. The case is bound to lead to many further questions about the scope of the duties of search engines like Google under EU laws. I raised this issue in an interview with CTV News.