Law Bytes

Earlier this year, Senator Claude Carignan introduced Bill S-225, a bill that purports to address concerns about the viability of the Canadian media sector by amending the Copyright Act. The Senate has been studying the bill in recent weeks with Senator Paula Simons serving as the bill critic and one of the leads on the issue. Senator Simons was a longtime journalist before being appointed to the Senate and while an ardent supporter of local journalism, she has been critical of the proposed legislation. She joins the Law Bytes podcast to discuss the state of journalism in Canada, why she doesn’t think the social media companies “stole” stories from the media, and what Canada should be doing to encourage innovation in the media sector. The podcast can be downloaded here, accessed on YouTube, and is embedded below. Subscribe to the podcast via Apple Podcast, Google Play, Spotify or the RSS feed. Updates on the podcast on Twitter at @Lawbytespod. Show Notes: Bill S-225 Senator Simons Speech on Bill S-225, May 25, 2021 Geist, The Copyright Bill That Does Nothing: Senate Bill Proposes Copyright Reform to Support Media Organizations Credits: TRCM: Conservative Sen. Claude Carignan appears at committee for Bill S-225, June 2, 2021

Earlier this month, the Privacy Commissioner of Canada released a scathing report on the RCMP’s use of facial recognition technology, particularly its work with Clearview AI. The report was particularly damaging as the Commissioner found that the RCMP wasn’t truthful when it said it didn’t work with Clearview AI and then gave inaccurate information on the number of uses when it was revealed that it did. In fact, even after these findings, the RCMP still rejected the Privacy Commissioner’s findings that it violated the Privacy Act. Lex Gill is a Montreal-based lawyer where she is an affiliate at the Citizen Lab and teaches at McGill University’s Faculty of Law. She has also worked at the Canadian Civil Liberties Association and the Canadian Internet Policy and Public Interest Clinic. Lex joins the podcast to discuss the Commissioner’s findings and to explain why this is best viewed as part of a long cycle of surveillance that has often targeted social movements or vulnerable populations. The podcast can be downloaded here, accessed on YouTube, and is embedded below. Subscribe to the podcast via Apple Podcast, Google Play, Spotify or the RSS feed. Updates on the podcast on Twitter at @Lawbytespod. Show Notes: OPC, Special report to Parliament on the OPC’s investigation into the RCMP’s use of Clearview AI and draft joint guidance for law enforcement agencies considering the use of facial recognition technology Credits: CityNews, RCMP Violated Privacy Act by Using Facial Recognition: Privacy Commissioner

The Liberal government strategy to push through Bill C-10 bore fruit last week as the controversial Broadcasting Act reform bill, received House of Commons approval at 1:30 am on Tuesday morning. Bill C-10 proceeded to receive first reading in the Senate later that same day and after a series of Senate maneuvers, received second reading from Senator Dennis Dawson the following day. That sparked Senate debate in which everyone seemed to agree that the bill requires significant study and should not be rubber-stamped. Speeches are likely to continue on this week after which the bill will be sent to committee. Given that the committee does not meet in the summer, an election call in the fall would kill Bill C-10. Peter Menzies is a former Vice-Chair of the CRTC and one of the most outspoken experts on Bill C-10. He joins the Law Bytes podcast to reflect on the last two months of the Bill C-10 debate, discuss the limits of CRTC regulation, and explore what comes next. The podcast can be downloaded here, accessed on YouTube, and is embedded below. Subscribe to the podcast via Apple Podcast, Google Play, Spotify or the RSS feed. Updates on the podcast on Twitter at @Lawbytespod. Show Notes: Peter Menzies, Bill C-10: Control-Freak Ottawa Confronts the Future. And the Future is Losing Credits: House of Commons, June 21, 2021

Several years ago, the Privacy Commissioner of Canada filed a reference with the federal court in a case that was billed as settling the “right to be forgotten” privacy issue. That may have overstated matters, but the case did address a far more basic question on whether the privacy law applies to Google’s search engine service when it indexes webpages and presents search results in response to searches of an individual’s name. Earlier this month, the federal court released its decision, concluding that it does. Mark Phillips is a Montreal-based lawyer practicing primarily in the areas of privacy, access to information, civil litigation, and administrative law in both Quebec and Ontario. His client – whose identity remains confidential under order of the court – filed the complaint that ultimately led to federal court decision. He joins the Law Bytes podcast to talk about the case, where the right to be forgotten stands under Canadian law, and what might come next. The podcast can be downloaded here, accessed on YouTube, and is embedded below. Subscribe to the podcast via Apple Podcast, Google Play, Spotify or the RSS feed. Updates on the podcast on Twitter at @Lawbytespod. Show Notes: Federal Court of Canada Reference decision Credits: Your Morning, Canadians Could Soon Have the Right to be Forgotten

Bill S-225, Senator Claude Carignan’s copyright bill, would create a new compensation scheme for media organizations by establishing a new collective rights system for the use of news articles on digital platforms. It may not become law, but it has sparked considerable discussion within the Senate on the issue of media and Internet platforms. In fact, while the digital policy world was focused on Bill C-10, last month the Senate Standing Committee on Transport and Communications held hearings on the bill with a wide range of witnesses that included News Media Canada, Facebook and Google. I was invited to appear in their last hearing of the session alongside Jamie Irving from News Media Canada and Kevin Chan from Facebook. This week’s Law Bytes podcast episode goes inside the virtual committee hearing room with my opening statement and exchanges with several Senators. The podcast can be downloaded here, accessed on YouTube, and is embedded below. Subscribe to the podcast via Apple Podcast, Google Play, Spotify or the RSS feed. Updates on the podcast on Twitter at @Lawbytespod. Show Notes: Bill S-225 (An Act to amend the Copyright Act (remuneration for journalistic works) Credits: MP Joyce Murray, Web Giants: Are They Too Big to Regulate? With Minister Steven Guilbeault

The CRTC’s wireless decision earlier this year dubbed the “MVN-no” decision given its very limited opening to mobile virtual network operators in Canada sparked widespread frustration with the Commission. That decision included one less discussed element, however, namely the expectation that the major wireless carriers would introduce low-cost plans to ensure connectivity for low-income Canadians. Those plans were recently introduced, but John Lawford, the Executive Director and General Counsel of PIAC, the Public Interest Advocacy Centre, wasn’t impressed. He wrote to the CRTC asking the Commission to take action over plans that aren’t even offered under the main carrier brands. He joins the Law Bytes podcast to talk about that issue, the ongoing concerns with the wireless affordability in Canada, and the deepening frustration with the CRTC. The podcast can be downloaded here, accessed on YouTube, and is embedded below. Subscribe to the podcast via Apple Podcast, Google Play, Spotify or the RSS feed. Updates on the podcast on Twitter at @Lawbytespod. Show Notes: PIAC Letter to the CRTC Re: Low Cost Wireless Plans Credits: CBC News, CRTC Examines Wireless Costs, Options

Privacy reform in Canada has lagged at the federal level with the efforts to update PIPEDA seemingly going nowhere, but multiple provinces have moved ahead with amending their own laws. Quebec leads the way as late last month it quietly passed Bill 64, a major privacy reform package that reflects – and even goes beyond – many emerging international privacy law standards. Chantal Bernier, the former interim privacy commissioner of Canada, now leads the Dentons law firm’s Canadian Privacy and Cybersecurity practice group. She joins the Law Bytes podcast to talk about Bill 64, including its origins, key provisions, and implications for privacy law in Canada. The podcast can be downloaded here, accessed on YouTube, and is embedded below. Subscribe to the podcast via Apple Podcast, Google Play, Spotify or the RSS feed. Updates on the podcast on Twitter at @Lawbytespod. Show Notes: Bill 64 on Modernizing Quebec privacy law – Why It Matters and How to Prepare for It Credits: Canadian Press, Bains Explains Update to Canada’s Digital Privacy Law

Vaccine passports or certificates launched in Ontario last week, a development welcomed by some and strongly opposed by others. The launch raises a myriad of legal, ethical, privacy, and policy issues as jurisdictions around the world grapple with the continued global pandemic and the unusual requirements of demonstrating vaccination in order to enter some public or private spaces. Professor Colleen Flood, a colleague at the University of Ottawa, has been writing and thinking about these issues for many months. Later today, she will be part of a panel discussion that explores the policy challenges hosted by the University of Ottawa Centre for Health Law, Policy and Ethics, and the Centre for Law, Technology and Society. She joins the Law Bytes podcast with an advance preview as we discuss the legal balancing act, models from around the world, and the concerns that governments should be thinking about in this next stage of dealing with COVID-19. The podcast can be downloaded here, accessed on YouTube, and is embedded below. Subscribe to the podcast via Apple Podcast, Google Play, Spotify or the RSS feed. Updates on the podcast on Twitter at @Lawbytespod. Show Notes: Vaccine Passports/Certificates: Law, Ethics & Policy Wilson & Flood, Implementing Digital Passports for SARS-CoV-2 Immunization in Canada Flood, Krishnamurthy, Wilson, Please Show Your Vaccination Certificate Credits: CityNews, Day One of Ontario’s Vaccine Passport

It is election day in Canada following a late summer campaign in which the focus was largely anything but digital issues: COVID, climate change, Afghanistan, and affordability all dominated the daily talking points. The digital policy issues that grabbed attention throughout the spring – Bill C-10, online harms, wireless pricing – were largely absent from the discussion and in some cases even from party platforms. Laura Tribe, the executive director of OpenMedia, joins the Law Bytes podcast to discuss digital policies and the 2021 election campaign. Our conversation walks through a wide range of issues, including the surprising omission of wireless pricing from the Liberal platform, the future of Bill C-10, and the failure of privacy reform to garner much political traction. The podcast can be downloaded here, accessed on YouTube, and is embedded below. Subscribe to the podcast via Apple Podcast, Google Play, Spotify or the RSS feed. Updates on the podcast on Twitter at @Lawbytespod. Credits: Global News, Canada Election: How are the Parties Planning to Tackle Cellphone Affordability

The role of the public and the public interest has factored prominently into many of the Law Bytes podcast conversations. For the 100th episode, Osgoode Hall Law School Professor David Vaver, widely viewed as Canada’s leading IP expert, joins the podcast. The recipient of the Order of Canada, Professor Vaver provided the scholarly grounding for the emergence of user rights in copyright in Canada and around the world. In this episode, he gives a masterclass on the history of copyright, the emergence of user rights, Supreme Court copyright jurisprudence, and potential future copyright reforms. The podcast can be downloaded here, accessed on YouTube, and is embedded below. Subscribe to the podcast via Apple Podcast, Google Play, Spotify or the RSS feed. Updates on the podcast on Twitter at @Lawbytespod.

Late last month – just weeks prior the national election call – Canadian Heritage Minister Steven Guilbeault released plans for online harms legislation with a process  that was billed as a consultation, but that is probably better characterized as an advisory notice, since there are few questions, options or apparent interest in hearing what Canadians think of the plans. Those plans include the creation of a bureaucratic super-structure that featuring a new Digital Safety Commission, a digital tribunal to rule on content removal, and a social media regulation advisory board. In terms of illegal content, the proposed legislation envisions a myriad of takedown requirements, content filtering, complaints mechanisms, and even website blocking. Cynthia Khoo is an Associate at the Center on Privacy & Technology at Georgetown Law in Washington. She is also the author of a ground-breaking Canadian study for LEAF, the Women’s Legal Education and Action Fund, on holding digital platforms accountable for technology technology-facilitated gender-based violence. She joins the Law Bytes podcast in a personal capacity to discuss the government’s consultation and her recent report. The podcast can be downloaded here, accessed on YouTube, and is embedded below. Subscribe to the podcast via Apple Podcast, Google Play, Spotify or the RSS feed. Updates on the podcast on Twitter at @Lawbytespod. Show Notes: Canadian Heritage, Technical Paper on Online Harms Credits: Canada 2020, Democracy in the Digital Age: Addressing Online Harms