Social Media and Privacy Law

Federation of Asian Canadian Lawyers (FACL), Annual Fall Conference 2011, November 12, 2011 Osgoode Professional Development Centre, 1 Dundas St. W, 26th Floor Social Media and Privacy Law Omar Ha-Redeye Barrister & Solicitor

1) Rules of Professional Conduct
2) Reputation Management Law

Rule 2.03 - Confidentiality

Rule 3.01(1-2) – Marketing and Advertising

Rule 3.03(1) - Specialists

Rule 4.05 - Jurors
.

Rule 4.06 – Administration of Justice

Rule 6.01 - Integrity

Marc Prensky. Digital Natives Digital Immigrant. On the Horizon (MCB University Press, Vol. 9 No. 5, October 2001) http://www.marcprensky.com/writing/prensky%20-%20digital%20natives,%20digital%20immigrants%20-%20part1.pdf Rule 6.03 - Civility

Rule 6.03 - Relationship to Others Rule 6.06 – Public Statements

Reputation Management Law

Online Reputation Management Plan

Pre-Litigation Options
Warning letter
Notice (and takedown)
notice and notice in Canada
Just ask nicely

Cease and Desist Letters
Think carefully about whether to send it
Consider the response
Stick to the facts
Don’t threaten to sue
Don’t set a compliance deadline or written response
Adapted from D.C. Toedt III, Cease-and-desist letters: Five ways to keep your client and yourself from looking foolish, June 29, 2010 http://www.ontechnologylaw.com/2010/06/cease-and-desist-letters-four-ways-to-keep-your-client-and-yourself-from-looking-foolish/

Anonymity is a Myth
R. v. Cuttell , 2009 ONCJ 471
3 rd Party custody of confidential information does not automatically extinguish any reasonable expectation of privacy
rights reserved by the third-party vis-a-vis
Cohen v. Google, Inc., Index No. 100012/09 (N.Y. Cty. Aug. 17, 2009)
Skanks in NYC (Blogspot)
pre-action disclosure
Revealed an acquaintance behind postings
Swartz v. Does, 6 th circuit, Tennessee
P subpoena Google
P entitled to discover identity of anonymous blogger

Different Approaches to Anonymity
York University v. Bell Canada Enterprises , 2009 CanLII 46447 (ON S.C.)
Use of pre-action discovery mechanism called a Norwich order
Privacy interest v. interests of justice
Limited for specific purposes, not absolute
Privacy interests overridden by s. 7(3)(c) of PIPEDA
Warman v. Wilkins-Fournier , 2009 CanLII 14054 (ON S.C.)
disclosure provisions of R 76.03 of the Rules of Civil Procedure
Disclosure balanced with freedom of expression interests
Matthew Nied, Unmasking Anonymous Defendants in Internet Defamation Cases: Recent Developments and Unresolved Issues, Canadian Privacy Law Review, Vol. 8, No. 3, February 2011

Vigna v. Levant , 2010 ONSC 6308
P a lawyer with Canadian Human Rights Commission
Sued Ezra Levant, lawyer and political activist, for blog posts on his site
Awarded $25,000 in damages, and ordered defamatory posts removed
costs decision awarded over $32,500

Reconsidering Damages in Online Defamation
Barrick Gold Corp. v. Lopehandia (2004), 71 O.R. (3d) 416
At Trial: D came across as a rant, not taken seriously
CA: Internet is "instantaneous," "borderless," and "far-reaching“, has "tremendous power to harm reputation“
Increased compensatory damages from $15,000 to $75,000
Anonymity increased risk of it being believed
Matthew Nied, Damage Awards in Internet Defamation Cases: Reassessing Assumptions About the Credibility of Online Speech. Alberta Law Review, October, 2010. http://www.albertalawreview.com/index.php/alr/supplement/view/Damage%20Awards%20in%20Internet%20Defamation%20Cases

Reputation Damage is Real
Social science evidence is compelling
Social media and online reputation has an impact in the offline world
Use of marketing studies, consumer surveys
Robert J. Currie. The Bounds of the Permissible: Using "Cultural Evidence" in Civil Jury Cases. Canadian Journal of Law and Society 20.1 (2005) 75-86
Monahan, John and Walker, Laurens “Social Authority: Obtaining, Evaluating and Establishing Social Science in Law” (1986) 134(3) University of Pennsylvania Law Review 477 - 518.
R. v. Butler , 1992 CanLII 124 (S.C.C.)
Irwin Toy Ltd. v. A.G. Que. , 1989 CanLII 87 (S.C.C.)

Credibility Gives Higher Damages
Courts look to impact on readers, credibility of the source
Greater likelihood of suffering reputational harm
Should they look at SEO, Google Rankings, web traffic?
Dinyer-Fraser v. Laurentian Bank of Canada , 2005 BCSC 225, 40 B.C.L.R. (4th) 39
Advocate Co. Ltd. Husbands (1969), 5 Barb. L.R. 113 at 124 (C.A.)

Crookes v. Newton , 2011 SCC 47
Abella (majority): recognized hyperlinks are a vital tool for distributing information online
2/6 of majority have retired
Open to further refinement of republication rule
McLachlin/Fish (concurring): B.C. test looking at surrounding words adopting/endorsing defamatory content
Deschamps: Hyperlinks can still be a publication; contextual test looking at if information brought to attention of readers
Deep/shallow links, evidence of 3 rd parties receiving and understanding it

Intermediary Liability?

Online Reputation Management Plan

Take Home Messages
Create your own personal website
Firm profile page is not enough
Protect your name on all major social media platforms
Don’t necessarily have to use them
Stay informed through legal publications, blogs, RSS
Eventually get engaged in the online community

Contact
http://www.omarha-redeye.com/
[email_address]
@omarharedeye
http://ca.linkedin.com/in/torontolawyer
http://www.facebook.com/#!/TO.Lawyer

Social Media and Privacy Law

by Omar Ha-Redeye

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