Category Archives: Internet Law

The Federal Government’s Proposal to Address Online Harms: Explanation and Critique

By: Darryl Carmichael and Emily Laidlaw

PDF Version: The Federal Government’s Proposal to Address Online Harms: Explanation and Critique

Commented On: The Federal Government’s proposed approach to address harmful content online

In late July, the Federal Government introduced its proposal for online harms legislation for feedback. It comprises a discussion paper outlining the government’s approach to regulating social media platforms and a technical paper that provides more detail on the substance of the proposed law. The proposal is part of a suite of law reform efforts by the Canadian government concerning what can broadly be categorized as platform regulation and content regulation issues. They include Bill C-10 to reform broadcasting laws, which stalled when it hit the Senate floor (for now at least) and proposed legislation to combat hate speech and hate crimes. The timing of the online harms and hate speech proposals has been a point of contention so close to the election call. Regardless of the election result in September, it is worthwhile analyzing this proposal because the Canadian government will need to prioritize law reform in this area. Online harms legislation is sweeping the globe, and Canada is well overdue to address these issues. For better or worse (as remains to be seen), new laws have been proposed or passed in Europe, the United Kingdom (UK), Australia, India, and Turkey, to name a few. Continue reading →

Protection Against Online Hate Speech: Time for Federal Action

By: Emily Laidlaw & Jennifer Koshan, with Emma Arnold-Fyfe, Lubaina Baloch, Jack Hoskins, and Charlotte Woo

PDF Version: Protection Against Online Hate Speech: Time for Federal Action

Legislation Commented On: Canadian Human Rights Act, RSC 1985, c H-6

Editor’s Note

During Equity, Diversity and Inclusion (EDI) Week at the University of Calgary in February 2021, the Faculty of Law’s EDI Committee held a research-a-thon where students undertook research on the law’s treatment of equity, diversity and inclusion issues. Over the next few weeks, we will be publishing a series of ABlawg posts that are the product of this initiative. This post is the first in the series, which also closely coincides with the International Day for the Elimination of Racial Discrimination next week on March 21. The theme this year is “Youth Standing Up Against Racism”, which fits well with this initiative.

Introduction

On January 5th, 2021, Erin O’Toole, leader of the Conservative Party of Canada, tweeted “Not one criminal should be vaccinated ahead of any vulnerable Canadian or front line health worker.” His tweet unsurprisingly went viral. To date the tweet has received 6.1k likes, 3.6k retweets and 4.8k comments. The tweet is representative of the kind of internet content we have grown increasingly and painfully accustomed to: content that is rhetorical, overblown, and often hateful, even if not explicitly directed at marginalized groups,  and that occurs on a platform with global reach. When Erin O’Toole tweets, it is to an audience of 122.7k followers.

This post is not about Erin O’Toole’s tweet per se. Indeed, while his tweet dehumanizes prisoners and those with a criminal record, persons who are disproportionately Indigenous, it is not obvious, on its face, that it meets the legal standard of hate speech. Rather, this post is about what tweets like his represent in the struggle to regulate hate speech online: that so much we intuitively know is wrong falls into a legal grey area, and that much of the harm is the mob pile-on that the original post inspires. In the case of the O’Toole tweet, many tweets in response have been removed by Twitter, but it is noteworthy that thousands of others addressed the harmful nature of his statements with tweets such as “prison health is public health”, recognizing the risk of COVID-19 transmission in prisons.

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Canada’s Proposed New Consumer Privacy Protection Act: The Good, the Bad, the Missed Opportunities

By: Emily Laidlaw

PDF Version: Canada’s Proposed New Consumer Privacy Protection Act: The Good, the Bad, the Missed Opportunities

Bill Commented On: Bill C-11, Digital Charter Implementation Act, 2020, 2nd Sess, 43rd Parl, 2020 (first reading 17 November 2020)

On November 17, 2020, the Federal Government unveiled the most sweeping consumer privacy law reform in the last twenty years with the proposed Digital Charter Implementation Act, 2020 (Bill C-11).  The Act would repeal and replace parts of the Personal Information Protection and Electronic Documents Act, SC 2000, c 5 (PIPEDA) with a new private sector privacy statute, the Consumer Privacy Protection Act (CPPA) (not to be confused with the well-known California Consumer Protection Act (CCPA)), and would enact the Personal Information and Data Protection Tribunal Act (Tribunal Act). The Bill makes good strides in modernizing Canada’s privacy legislation. It is also, in the end, a missed opportunity for more profound law reform.

If passed, it will necessitate modernization of Alberta’s Personal Information Protection Act, SA 2003, c P-6.5 (PIPA). PIPA is designated substantially similar legislation, meaning that PIPA rather than PIPEDA regulates personal information within our provincial borders (and through our ombudsman, the Office of the Information and Privacy Commissioner of Alberta). Without this designation, PIPEDA would apply to all consumer privacy transactions within Alberta. As will be detailed below, Bill C-11 fundamental revamps consumer privacy legislation and therefore unless Alberta follows suit, it is highly unlikely the substantially similar designation can be maintained.

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A Right to be Forgotten Online: A Response to the Office of the Privacy Commissioner Draft Position

By: Emily Laidlaw

PDF Version: A Right to be Forgotten Online: A Response to the Office of the Privacy Commissioner Draft Position

Document Commented On: Draft OPC Position on Online Reputation

The Office of the Privacy Commissioner (OPC) published its draft position on online reputation last week stating that the Personal Information Protection and Electronic Documents Act, SC 2000, c-5 (PIPEDA) provides a right to de-index search results (remove a link to a webpage from search results based on a keyword search) and a right to source takedown (removal of a webpage from the host site). De-indexing and source takedown are specific ways that a person might deploy a right to be forgotten, an issue hotly debated for several years, but especially since the Court of Justice of the European Union decided Google Spain SL, Google Inc v Agencia Espanola de Proeccion de Datos (AEPD), Marios Costeja Gonzalez, (2014) Case C-131/12 (known as Google Spain). Scholars have already responded to the OPC, such as here, here and here. I offer a different commentary, reflecting my first critical thoughts on three key issues arising from the report: (a) the public interest test suggested by the OPC to balance freedom of expression and privacy; (b) the role of private technology companies; and (c) the blurring of the line between data protection and defamation regimes. While I will discuss source takedown briefly (and for a more thorough analysis of intermediary liability and defamation law, see my work with Dr. Hilary Young here), the focus in this post will largely be on search results.  Continue reading →

Douez v Facebook, Inc.: Public Policy and Broad Strokes

By: Jassmine Girgis

PDF Version: Douez v Facebook, Inc.: Public Policy and Broad Strokes

Case Commented On: Douez v Facebook, Inc., 2017 SCC 33 (CanLII)

On its face, Douez v Facebook, Inc. decides the enforceability of a forum selection clause. But the Douez case also addresses public policy issues arising from consumer contracts of adhesion and the Internet era. A majority of the Supreme Court of Canada used public policy principles to find the clause unenforceable.

In British Columbia, a class action was brought against Facebook, Inc. on behalf of 8.1 million people. They alleged Facebook used the names and pictures of certain members for advertising without their consent, contrary to the Privacy Act, RSBC 1996, c 373. Facebook sought to stay the proceedings on the basis of a forum selection clause contained in its terms of use, terms to which all Facebook members must agree before they access the site. The clause requires all disputes be resolved in California, according to California law. Continue reading →