Message board operators liable for defamatory posts says court: Baglow v. Smith

March 1st, 2015 by Barry Sookman No comments »

You know a defamation case is going to be a good one when it starts like this:

Political debate in the Internet blogosphere can be, and, often is, rude, aggressive, sarcastic, hyperbolic, insulting, caustic and/or vulgar.  It is not for the faint of heart.  This case is an action in defamation involving political bloggers on the Internet.

The case is Baglow v. Smith, 2015 ONSC 1175. One of the issues in the case was whether the moderator of a message board who does not remove defamatory content is liable as a publisher for defamation purposes.

C.D. Howe: Copyright Board undercompensating artists and depriving rights holders of royalties

February 19th, 2015 by Barry Sookman No comments »

Shortly after the Copyright Board certified Tariff 8 setting royalty rates for webcasting services in Canada, 70 music organizations publicly denounced it. They called it “a serious setback for the music community in Canada” and “for artists and the music companies who invest in their careers”. A core criticism was the Board’s refusal to use freely negotiated market-based agreements as the proxy to set the rates and to certify the tariff at 10% of the rates that the same services pay in the U.S.

Cyber threats, information sharing and The Digital Privacy Act

February 16th, 2015 by Barry Sookman No comments »

Cyber security is top of mind these days in corporate boardrooms, governments, and with consumers. Last week was exemplary with more reports of hacks and governments moving forward with measures attempting to address the growing threats.

The New York Times reported that bank hackers stole millions using malware in a scam that allegedly involved an attack on more than 100 banks and other FIs in 30 nations. This followed a series of seemingly unending reports of attacks against other organizations.

Jurisdiction simpliciter in copyright cases: Geophysical Service v Arcis Seismic Solutions

February 8th, 2015 by Barry Sookman No comments »

In Club Resorts Ltd. v Van Breda, 2012 SCC 17, the Supreme Court clarified the rules for when a Canadian court can assume jurisdiction over a claim against a party located outside the jurisdiction. Specifically, it clarified the rules for applying the real and substantial test to determining if there is a sufficient connection between the subject matter of the action and the jurisdiction for  determining jurisdiction simpliciter. The Van Breda case did not, however, address how that test would apply to cases involving infringement of copyright.

Internet justice: Mosley v Google

February 2nd, 2015 by Barry Sookman No comments »

In the landmark ruling in Google Spain SL, Google Inc. v Agencia Española de Protección de Datos, Mario Costeja González (case no. C-131/12, May 13, 2014), the Court of Justice of the European Union (CJEU) recognized that search engines are controllers of the personal information they process and have the obligation, in appropriate cases, to de-list links to personal information in their search results. A recent decision in  Mosley v Google Inc & Anor [2015] EWHC 59 (QB) (15 January 2015) has recognized that a right to get a blocking order against a search engine might also exist in the United Kingdom under the UK Data Protection Act 1998. The case also illustrates the challenges individuals have in vindicating their privacy interests in the Internet context.

LSUC: The year in review in copyright (2014)

January 25th, 2015 by Barry Sookman 2 comments »

On January 22, I gave a talk at the Law Society of Upper Canada’s 19th Annual Intellectual Property Law: The Year in Review program. My talk canvassed developments in copyright in 2014. I previously published a paper that summarizes leading cases from Canada, the United States, elsewhere in the Commonwealth and the European Union called Copyright law 2014: the year in review and is available at the link on my blog.

My slides from the LSUC talk are reproduced below and summarize the following cases:


  1. Canadian Artists’ Representation v. National Gallery of Canada, 2014 SCC 42

User’s Guide to Canadian Copyright Tariffs

January 24th, 2015 by Barry Sookman No comments »

Ever have trouble figuring out what tariffs have been certified by the Copyright Board for the uses of copyright? If so, the new book entitled User’s Guide to Canadian Copyright Tariffs written by McCarthy Tétrault lawyers Peter Grant, Grant Buchanan, Dan Glover and Keith Rose is for you.


This 350 page book is an annotated guide to Canadian copyright tariffs relating to the use of music, the reproduction of literary works, media monitoring, private copying, and the retransmission of distant radio and television signals. The book includes the full text of the most recent version of all tariffs certified by the Copyright Board of Canada, along with explanatory tables and editorial notes.

CASL: the unofficial FAQ, regulatory impact statement, and compliance guideline

January 14th, 2015 by Barry Sookman No comments »

The “anti-spam” portion of Canada’s anti-spam/spyware law (CASL) came into on July 1, 2014. The “malware/spyware” computer program provisions come into force on January 15, 2015.

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.

Copyright law 2014: the year in review

January 2nd, 2015 by Barry Sookman No comments »

As the creative industries continued to grow economically in importance in 2014, so have the stakes in copyright litigation. Increasingly, the courts have been challenged to resolve complex disputes arising from new uses of works and other subject matter brought about by innovations in technology. While content is often a core and indispensable element of new and innovative services, products or offerings, frequently parties dispute whether the use requires permission and payment to rights holders or can be engaged in without permission or payment. This post reviews some of the highlights of the court battles of 2014 in Canada and other Commonwealth countries, the United States and the European Union.

Cell phone searches legal say SCOC: R v Fearon

December 11th, 2014 by Barry Sookman No comments »

A divided Supreme Court ruled that individuals cannot be secure that their most personal information will be protected from warrantless searches when arrested. In a 4 to 3 ruling, in R v Fearon, the Court held that if a person is lawfully arrested, a search is conducted that is incidental to the arrest, the search is tailored to its purpose, and the police take detailed notes, police may search the person’s cell phone.