The Industry Canada CASL regulations and RIAS: a lost opportunity

December 16th, 2013 by Barry Sookman No comments »

If it was not clear enough before that there are many problems with CASL, it became evident when Industry Canada released the final regulations and the Regulatory Impact Analysis Statement (the RIAS). CASL takes an extremely broad “ban all” approach to regulating commercial messages and the installation of computer programs. This structure makes the exceptions particularly important because every CEM sent without consent (and following the prescribed rules) and every computer program installed on any computer (machine or device) without consent (and making the required disclosures) as part of a commercial activity will be illegal. The regulations purport to address some of the major necessarily inadvertent consequences with CASL’s breadth and structure.  See, CASL Industry Canada regulations: summary and comments. However, they fall short in many very important respects.

Legislative and Judicial Approaches to Internet Regulation: CASL as a case study

December 14th, 2013 by Barry Sookman No comments »

Here are slides from a talk I gave earlier in the year to Justice Canada on the topic of approaches to Internet regulation. It used CASL of a case study of what not to do. The slides referred to the Alberta Court of Appeal decision in the United Food case. That decision has since been affirmed by the Supreme Court in Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401, 2013 SCC (summarized here)

For more information about CASL, see, CASL: the unofficial FAQ, regulatory impact statement, and compliance guideline.

CASL Industry Canada regulations: summary and comments

December 4th, 2013 by Barry Sookman 4 comments »

The Government has published final regulations and the Regulatory Impact Analysis Statement (RIAS) related to Canada’s anti-spam legislation (CASL). It has also published a copy of the Order in Council fixing the date when the Act will come into force. They are available on the fightspam.ca website.

Most of the Act will take effect on July 1, 2014. The sections of the Act related to the unsolicited installation of computer programs or software will come into force on January 15, 2015. The private right of action comes into force on January 1, 2017.

Industry Canada CASL Regulations published

December 4th, 2013 by Barry Sookman No comments »

Industry Canada Minister James Moore announced today that the new Industry Canada CASL regulations will be published in the Canada Gazette on December 18, 2013, just over a year after the second draft regulations were published for comment.

The final regulations are now also available on the fightspam.ca website along with an Explanatory Note, a Regulatory Impact Statement and an Order dealing with when CASL will come into force. CASL will come into effect on July 1, 2014. However, the computer program portion will only take effect on January 15, 2015. The private right of action will not come into force until July 1, 2017.

Intellectual property education: are Canadian law schools doing enough to support innovation?

November 26th, 2013 by Barry Sookman 2 comments »

Innovation is a major driver of economic growth. It is also central to the competitiveness of the Canadian economy. It is an engine that creates challenging and well paying jobs. The protection of intellectual property is an important element in promoting innovation and in supporting markets in the trade and dissemination of innovative and creative products and services.[1] Intellectual property is now a crucial asset, the ownership of which has become pivotal to corporations.  In some sectors their ultimate value is their IP.[2] Intellectual property lawyers can play an important role in enabling the acquisition, protection, and exploitation of intellectual property rights. Law schools can play an important role in training lawyers to provide these important services.  Are Canadian law schools meeting these innovation challenges?

Streaming websites blocked in UK: Paramount v Sky

November 18th, 2013 by Barry Sookman No comments »

The England High Court recently made an order requiring ISPs to block two linking websites located at www.solarmovie.so (“SolarMovie”) and www.tubeplus.me (“TubePlus”). In doing so, the court in Paramount Home Entertainment International Ltd & Ors v British Sky Broadcasting Ltd & Ors [2013] EWHC 3479 (Ch) (13 November 2013) ruled that the sites, which did not themselves host any content, were nevertheless liable for infringement because they facilitated streaming of content to users by hosting and organizing hyperlinks to the content without consent of copyright owners.

The nature of the sites in issue (the “Websites”) were describe by Justice Arnold as follows:

Alberta PIPA violates Charter says Supreme Court in IPC v United Food and Commercial Workers

November 15th, 2013 by Barry Sookman No comments »

The Supreme Court released a landmark decision today in the  Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401, 2013 SCC 62 case. In short, the Court found that while Alberta’s privacy legislation PIPA plays a vital role in protecting privacy, it violated the Charter right to freedom of expression by precluding the use of personal information in the labour context. The ruling is an appeal from a decision the Alberta Court of Appeal, which is summarized here.

The headnote of the case reads as follows:

CASL marches towards starting gate

November 13th, 2013 by Barry Sookman No comments »

Earlier today I gave a speech at the 19th Annual Regulatory Compliance for Financial Institutions conference on the application of the OSFI B-10 Guidelines to outsourcing and cloud computing transactions. I came early to hear a presentation on CASL given by Kelly-Anne Smith, legal counsel at the CRTC.

In addition to providing an overview of some of CASL’s provisions and the CRTC regulations and guidelines, she provided some information about CASL that many have been wondering about including the following:

CASL – An FAQ

November 7th, 2013 by Barry Sookman No comments »

Earlier today, I had the pleasure of attending a conference of the Barreau de Montreal on the subject of Canada’s anti-spam/spyware law (CASL). I was on a panel with Bill Abbott , Senior Legal Counsel, Legal Affairs, Bell Canada, Lynne Perrault , Director of the Division of Enforcement of electronic commerce, with the CRTC, and Stephanie Rich, Assistant General Counsel, protection of privacy and ethics, Aimia.

My talk was titled Canada’s anti-spam law – An FAQ. My slides are set out below. Let me know how many questions you know for certain you got right and how many you were unsure of.

Combating Counterfeit Products Act before Standing Committee

November 5th, 2013 by Barry Sookman No comments »

The House of Commons Standing Committee on Industry, Science and Technology has started hearings on Bill C-8, the Combating Counterfeit Products Act. On Monday November 4, 2013, Minister of Industry James Moore appeared before the Committee. Also in attendance were witnesses from the Department of Industry, John Knubley, deputy minister, and Paul Halucha, director general of the marketplace framework policy branch. They were joined by Martin Bolduc, the vice-president of the operations branch Canada Border Services Agency and Superintendent Eric Slinn, director general, support services for federal policing from the RCMP.

Minister Moore led off the hearing with remarks that included the following: