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    Casl and freedom_of_expression_-_final_lsuc_conference_slides Casl and freedom_of_expression_-_final_lsuc_conference_slides Presentation Transcript

    • McCarthy Tétrault Advance™ Building Capabilities for Growth CASL and Freedom of Expression – The Writing Is on the Wall 17th Biennial National Conference – Communications Law and Policy Daniel G. C. Glover Partner Direct Line: (416) 601-8069 E-Mail: dglover@mccarthy.ca May 1, 2014
    • McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca 11756862 - It is “part of an international movement towards giving individuals better control over their personal information” - Such control is intimately connected to individual autonomy, dignity and privacy - CASL is intended to protect consumers and businesses against fraud and harassment in the digital marketplace No one disagrees with these objectives. CASL HAS SALUTARY OBJECTIVES 2
    • McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca 11756862 But Is CASL Sufficiently Focused to Survive a Charter Challenge? 3
    • McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca 11756862 ¬ Rational Connection: Measures adopted must be carefully designed to achieve the objective. They must not be arbitrary, unfair or based on irrational considerations. ¬ Minimal Impairment: The means should impair ‘as little as possible’ the right or freedom. ¬ Proportionality: There must be a proportionality between the effects of the measures and the objective which has been identified as of ‘sufficient importance’. Onus rests on the party seeking to uphold the limitation on a Charter right. A Refresher on the Oakes Test 4
    • McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca 11756862 - First head-on clash between Charter right of freedom of expression and “quasi-constitutional” right of privacy - Both sides filmed people crossing a picket line in West Edmonton Mall - Union threatened to post photos on “CasinoScabs.ca”, but Alta Privacy Commissioner prohibited use - PIPA struck down at Alta CA and SCC on s. 2(b) expression grounds Alberta v. United Food, 2013 SCC 62 5
    • McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca 11756862 ¬ It covers all PI of any kind, and provides no functional definition of that term. ¬ The Act contains no general exception for info that is personal, but not at all private. ¬ The exception relating “publicly available information” is artificially narrow. ¬ There is no general exemption for information used for free expression. ¬ There is no exemption allowing organizations to reasonably use personal information that is reasonably required in the legitimate operation of their businesses. Why Did Alta. CA Strike Down PIPA? 6
    • McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca 11756862 “PIPA’s objective is increasingly significant in the modern context... However… these broad restrictions … are disproportionate to the benefits the legislation seeks to promote. In other words, ‘the Charter infringement is too high a price to pay for the benefit of the law’” [SCC, para. 20] SCC: PIPA Fails the Oakes Test 7
    • McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca 11756862 What is of the utmost significance… is that PIPA prohibits the collection, use, or disclosure of personal information for many legitimate, expressive purposes... These purposes include ensuring the safety of union members, attempting to persuade the public not to do business with an employer and bringing debate on the labour conditions with an employer into the public realm. These objectives are at the core of protected expressive activity. [para. 26] SCC: PIPA Fails the Oakes Test 8
    • McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca 11756862 “An analysis of the constitutionality of the statute calls for an application of the Oakes test. On the other hand, it could be argued that the statute is not unconstitutional per se, but that the way it was brought to bear in this particular decision was inconsistent with Charter values. From that perspective, a Doré analysis is called for. Even if the statute is valid, Doré confirms that the particular decision must be consistent with Charter values.” United Food (2012 ABCA 130) ¬CASL could fall short in an absolute sense, or in the way it is applied ¬Does the admin decision interfere with the Charter guarantee no more than is necessary given the statutory objectives? [Dore, 2012 SCC 12] A Primer on the Charter and Admin Law 9
    • McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca 11756862 “Over and above its intrinsic value as expression, commercial expression which, as has been pointed out, protects listeners as well as speakers plays a significant role in enabling individuals to make informed economic choices, an important aspect of individual self fulfillment and‑ personal autonomy.” Ford v. Quebec, [1988] 2 S.C.R. 712 (also see Guignard SCC 2002) The Value of “Commercial” Expression 10
    • McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca 11756862 The Breadth of CASL 11
    • McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca 11756862 CASL Sweeps Up Even Incidental Commercial Messages “A “commercial electronic message” is an electronic message that, having regard to the content of the message, the hyperlinks in the message to content on a website or other database, or the contact information contained in the message, it would be reasonable to conclude has as its purpose, or one of its purposes, to encourage participation in a commercial activity…” ¬Only one purpose, even through use of hyperlinks, logos, contact information, could be seen to “encourage participation in a commercial activity” and thus violate CASL ¬Accessory liability for aiding or procuring violation means that others’ speech can lead to liability. ¬Private right of action with multimillion dollar damages causes chill. (Can’t rely on the restraint of the regulator!) 12
    • McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca 11756862 The Problem of Legacy Consents 13
    • McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca 11756862 PIPEDA Consents Not Grandfathered Black’s Law Dictionary (Express Consent): “Consent that is clearly and unmistakably stated” but… ¬ Consents under PIPEDA to send CEMs not necessarily valid for the purposes of CASL ¬ CASL creates a harsher consent regime than PIPEDA since “implied consents” are a list of closed categories ¬ Consents can’t be inferred by conduct as in Australia or New Zealand ¬ Pre-checked boxes considered anathema by the CRTC ¬ Consents can’t be “bundled” into a licence agreement under CRTC Interpretive Guidelines, para. 16 14
    • McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca 11756862 The Underinclusive EBR 15 The “existing business relationship” basis for implied consent has a disproportionate effect on manufacturers because it is impossible to ascertain who on a mailing list qualifies because goods are sold through intermediaries. ¬As a result, and because “re-opt- ins” have a low response rate, mailing lists are being purged for fear of liability.
    • McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca 11756862 CASL = MORE THAN MALWARE/SPYWARE Applies to “computer programs” as meaning “data representing instructions or statements that, when executed in a computer system, causes the computer system to perform a function”. •Broad definition does not regulate invasive computer programs, but all computer programs •Parliament could have restricted operation to “invasive function” programs (described in s. 10(5) of CASL) •Contrast to Irwin Toy (targeted limitation to narrow class of actors) •First act of its kind in the world 16
    • McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca 11756862 CHILL UNDER CASL 9. It is prohibited to aid, induce, procure or cause to be procured the doing of any act contrary to any of sections 6 to 8. 17
    • McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca 11756862 So Is the Writing on the Wall? 18
    • McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca 11756862 VANCOUVER Suite 1300, 777 Dunsmuir Street P.O. Box 10424, Pacific Centre Vancouver BC V7Y 1K2 Tel: 604-643-7100 Fax: 604-643-7900 Toll-Free: 1-877-244-7711 CALGARY Suite 4000, 421 7th Avenue SW Calgary AB T2P 4K9 Tel: 403-260-3500 Fax: 403-260-3501 Toll-Free: 1-877-244-7711 TORONTO Box 48, Suite 5300 Toronto Dominion Bank Tower Toronto ON M5K 1E6 Tel: 416-362-1812 Fax: 416-868-0673 Toll-Free: 1-877-244-7711 MONTRÉAL Suite 2500 1000 De La Gauchetière Street West Montréal QC H3B 0A2 Tel: 514-397-4100 Fax: 514-875-6246 Toll-Free: 1-877-244-7711 QUÉBEC Le Complexe St-Amable 1150, rue de Claire-Fontaine, 7e étage Québec QC G1R 5G4 Tel: 418-521-3000 Fax: 418-521-3099 Toll-Free: 1-877-244-7711 UNITED KINGDOM & EUROPE 125 Old Broad Street, 26th Floor London EC2N 1AR UNITED KINGDOM Tel: +44 (0)20 7786 5700 Fax: +44 (0)20 7786 5702 19