automated decision making

Using privacy laws to regulate automated decision makingUsing privacy laws to regulate automated decision making



Making decisions about individuals using computers and computer algorithms is now commonplace. There are now also increasing proposals to use privacy laws to regulate automated decision making. One of the first explicit attempts to regulate automated decision-making using privacy laws is the European Union General Data Protection Regulation (GDPR).  More recently (and locally), both the Consumer Privacy Protection Act (CPPA), Canada’s proposed controversial new privacy law, and Bill 64, Quebec’s proposed privacy amendments, would enact new transparency and explainability obligations for automated decision making.…

CPPA: summary and criticismsCPPA: summary and criticisms



Canada’s new proposed privacy law, the CPPA, would be a major overhaul of PIPEDA. The draft law is designed to deal with new challenges of protecting personal information arising from major increases in the collection, use and disclosure of personal information and it uses in AI systems, IOT, big data analytics, and as part of many other technologies and processes. While the law is intended to balance the interests of individuals in their reasonable expectations of privacy and the legitimate interests of organizations, it falls short in many ways.…

Budget 2021 data and intellectual propertyBudget 2021 data and intellectual property



Federal Budget 2021 released earlier today has a few notable proposed expenditures in the areas of data and intellectual property.

The budget proposes a new “Data Commissioner”. This role “would inform government and business approaches to data-driven issues to help protect people’s personal data and to encourage innovation in the digital marketplace”. Budget 2021 proposes to provide $17.6 million over five years and $3.4 million per year ongoing, to create a Data Commissioner. It also proposes to provide $8.4 million over five years and $2.3 million ongoing, to the Standards Council of Canada to continue its work to advance industry-wide data governance standards.…

copyright update

Copyright Potpourri 2020-2021: my ALAI Canada presentationCopyright Potpourri 2020-2021: my ALAI Canada presentation



I had the pleasure of speaking earlier today at an ALAI Canada meeting to give a copyright law update for 2020-2021. The title of my talk was Copyright Potpourri. The cases canvassed were:

York University v. Canadian Copyright Licensing Agency, 2020 FCA 77

York University, et al. v. Canadian Copyright Licensing Agency, SCC Docket 39222

Bell Media Inc. v. GoldTV.Biz, 2019 FC 1432

TEKSAVVY SOLUTIONS INC. v. BELL MEDIA INC., ET AL Appeal (Copyright Act, FCA A-440-19

Entertainment Software Assoc.

what the CPPA means for you

Crestview panel on what the CPPA means for CanadiansCrestview panel on what the CPPA means for Canadians



I had the pleasure of participating today in a Crestview moderated panel that focused on what the CPPA means for Canadians. I was joined by Jackie Choquette, Interim Practice Lead, Government Relations, Crestview Strategy, Sarina Rehal, Vice President, Crestview Strategy, and Bill Abbott, Director Data Policy and Research, Data & Trust Office, TELUS.

You can view a recording of the Crestview moderated panel below:

If you just want to see the slides used at the Crestview moderated panel, they are below:

Supreme Court denies Compufinder leave to appeal in CASL Charter and constitutional challengeSupreme Court denies Compufinder leave to appeal in CASL Charter and constitutional challenge



Earlier this morning the Supreme Court of Canada denied Compufinder leave to appeal  the decision of the Federal Court of Appeal in the CASL Charter and constitutional challenge in 3510395 Canada Inc. v. Canada (Attorney General), 2020 FCA 103. CASL is the unofficial name for Canada’s much maligned anti-spam (and malware) law, a law that many information technology and privacy lawyers believe should be scrapped.

The issues in the case were summarized by the Supreme Court as follows:

Constitutional law — Division of powers — Parliament’s general trade and commerce power — Charter of Rights and Freedoms — Freedom of expression — CRTC and Federal Court of Appeal finding anti‑spam legislation intra vires Parliament’s power and constitutional — Whether ubiquity of online commerce is a “constitutionally significant transformation” bringing regulation of all commercial electronic messages within Parliament’s general trade and commerce power under s.

information technology lawyer

Why you need a good information technology lawyer for complex IT agreements: CIS v IBMWhy you need a good information technology lawyer for complex IT agreements: CIS v IBM



If you are an information technology lawyer you will want to read the recent decision from the U.K., CIS General Insurance Ltd v IBM United Kingdom Ltd [2021] EWHC 347 (TCC) (19 February 2021). The case resulted from what the court described as “a disastrous IT project” for a build and run insurance system project in which IBM wrongfully terminated the contract to avoid mounting losses. The case is replete with abject lessons for information technology lawyers who draft and negotiate or litigate complex IT agreements.…

Copyright term extension

Copyright term extension consultationCopyright term extension consultation



The government just launched a consultation on how to implement an extension to the copyright term for works from 50 to 70 years from the life of the author. Canada agreed to this term extension as part of the Canada-United States Mexico Agreement (CUSMA). Under that treaty, Canada has 2.5 years to implement the amendment. Extending the term of protection to 70 years would bring Canada into line with the terms of protection of our major trading partners.

This consultation “aims to solicit views from stakeholders and the Canadian public on whether accompanying measures should be adopted to address concerns that have been raised over the potential implications of a longer general copyright term, and if so, what form such measures should take.”…

Privacy and Clearview, Facial recognition

Exceptions from consent in PIPEDA: facial recognition, privacy and ClearviewExceptions from consent in PIPEDA: facial recognition, privacy and Clearview



PIPEDA requires consent for the collection, use and disclosure of personal information. PIPEDA also has many exceptions where consents are not required. These exceptions are part of the balance in PIPEDA and enable uses of public information for purposes that are in the public interest. The collection of photos from online sources by Clearview AI, Inc. (“Clearview”) using facial recognition software to facilitate use by law enforcement was recently found to be illegal following a joint investigation by the federal Office of the Privacy Commissioner of Canada (“OPC” or the “Commissioner”) and privacy Commissioners from Quebec (“CAI”), Alberta (“OIPC AB”), and British Columbia (“OIPC BC”) (the “Offices”).…

Internet harassment

Internet harassment: Caplan v AtasInternet harassment: Caplan v Atas



“The prevalence of online harassment is shocking. In Canada, as of October 2016, about 31% of social media users were harassed. Studies on the effects of cyber harassment show the potentially devastating impact of these attacks”. These were findings in the recent case Caplan v. Atas, 2021 ONSC 670 in which an Ontario court held that the tort of Internet harassment and new online enforcement remedies should be recognized as essential tools to combat cyber-stalking and other forms of Internet harassment.…