The document summarizes concerns that the Canadian Anti-Spam Legislation (CASL) may not withstand a constitutional challenge under the Canadian Charter of Rights and Freedoms. Specifically, it is argued that CASL's broad restrictions on electronic messages for commercial purposes may disproportionately infringe on freedom of expression rights. Previous privacy legislation in Alberta was struck down for placing too high of a limitation on expression. The broad scope and lack of exemptions in CASL could similarly fail to meet the test to justify a Charter rights infringement. The potential for substantial liability under CASL may also have a chilling effect and discourage legitimate communication.
Here are the slides used in my presentation to the Toronto Computer Lawyers Group earlier today, The Year in Review: Developments in Computer, Internet and E-Commerce Law (2010-2011). It covers significant developements since my talk last spring.
Here are the slides used in my presentation to the Toronto Computer Lawyers Group earlier today, The Year in Review: Developments in Computer, Internet and E-Commerce Law (2010-2011). It covers significant developements since my talk last spring.
“Covenants to not compete” with former employers (“noncompetes”) are increasingly required from a wide range of employees, including camp counselors, hairstylists and sandwich-makers. At least half of high-technology employees are required to sign them.
Noncompetes have long been a part of the contract law of most states. Only a few states, like California, do not enforce them.
Noncompetes are increasingly criticized, however, as suppressing industry growth and employee mobility and prosperity. Congress has demanded that the Federal Trade Commission evaluate the fairness of noncompetes. Massachusetts, Virginia and Minnesota have considered bans on noncompetes, with the support of entrepreneurs and venture capitalists, as well as former employees bound by these agreements.
Pro-competition public policies limit the enforcement of noncompetes. Employees thinking of starting a new job or business should consider these limitations as they prepare for their new (self) employment. They should ask themselves these questions:
What should I do about my existing employer's noncompete agreement, if I am considering leaving to join another employer or to start a new company?
What should I ask a prospective employer about noncompetes before I agree to a new job, or begin work?
What are the public policy limitations on noncompete agreements if they cannot be avoided in current or prospective employment?
What are the terms of a noncompete agreement that might be open to negotiation, and what should I ask for?
If I am prevented from doing the kind of work I want to do because of a noncompete agreement with a former employer, do I have any options?
Cybersecurity & Data Protection: What the GC & CEO Need to KnowShawn Tuma
The main points of this presentation are:
(1) Cybersecurity events create a crisis situation and should be treated as such;
(2) Cybersecurity incidents are as much legal events as they are IT or Business / Public Relations events;
(3) Companies must have a cybersecurity breach response plan in place and tested, in advance;
(4) While consumer class action data breach litigation is a significant threat to companies and their leadership, it is not as great of a threat as regulatory enforcement by agencies such as the FTC and SEC, or the shareholder derivative claims for officer and director liability; and
(5) The odds are that all company will be breached, but preparation and diligence can help minimize the likelihood that such a breach from being a catastrophic event.
This presentation addresses the role of attorneys as the first responders in leading their clients through cybersecurity and data loss crisis events. The discussion begins by looking at the risk business have of being the victim of a cybersecurity or data loss incident and examining the nature of such incidents and the crisis environment they create. Then, because of this crisis environment, the need for leadership in helping keep the parties calm, rational, and making deliberate, calculated decisions.
The discussion then explains why cybersecurity events are legal events and legal counsel is the natural leader that should fulfill this role and how they can do so. It will then discuss the process legal counsel will take, including assembling the key players in such an event, both internally and externally. It discusses the obligations for responding to such an event, the steps that must be taken, those that must be considered, and certain factors that go into the decision-making process. It briefly addresses the costs of such an incident and the liability issues that can arise from such an incident and failing to properly respond to the incident. This section includes a discussion of the cybersecurity lawsuit landscape, cybersecurity regulatory landscape, and the issue of cybersecurity-related officer and director liability stemming from shareholder derivative lawsuits based on cybersecurity incidents.
It concludes with a discussion of the steps that companies can take to prepare for and be in a better position to respond to and mitigate the negative repercussions of such an incident.
Protecting Your Consumer Product and Retail Brand in the Social Media EraElder C. Marques
This presentation looks at the promise and perils of social media for retailers and consumer product companies. It surveys some key legal issues relating to the protection of consumer brands online. Social media improves the way that brands can connect with consumers, but it also permits real damage to be done to brands quickly.
Data breach events result in significant losses each year. Our partners at Bonahoom & Bobilya, LLC, created a presentation about understanding the hidden regulatory risks of a data breach so you can keep your company from going out of business.
This presentation has been shared with permission.
1. The security exchange commission (SEC) was formed in 1933 in th.docxjeremylockett77
1. The security exchange commission (SEC) was formed in 1933 in the wake of the great depression. According to Karmel (1998), the SEC engages in a wide range of regulatory activities and some administrative duties but its reputations is mostly that of a prosecutorial agency. As stated by Seaquist (2012), the securities act of 1933 is only applicable to initial public offerings (IPO). To list an IPO it must first be registered with the SEC. Registration is required by law for a corporation to sell stock to the public (Seaquist, 2012). A California private non-profit university wishing to sell “Shares in Learning” certificates for $500 redeemable for two undergraduate courses or one graduate course would not need to register with the SEC to issue the certificates. There are securities that are exempt from registering with the SEC. As stated by Seaquist (2012), one of the securities are exempt from regulation in the Securities Act of 1933 are securities issued by non-profit religious, charitable, educational, benevolent, or fraternal organizations.
If the University was for-profit and operated in all 50 states and wanted to sell the “Shares in Learning” certificate it would still not need to register with the SEC. The supreme court case SEC v W. J. Howey Co. concluded that an investment contract is a security under the act (Seaquist, 2012). As defined by the “Howdy test” an investment contract meets the criteria for a security if a person invests in a common enterprise and reasonably expects a profit derived from the efforts of others (Seaquist, 2012). The “Shares for Learning” certificates do not pass the Howdy test to qualify as a security as there is no reasonable expectation for profit. Despite the fact that the “Shares for Learning” may be resold without limitation it is not feasible to consider making a profit off of the certificates. It seems unreasonable that one would buy the certificates in the hope that the University's leadership would make an effort to increase the cost of tuition to the point that one could turn a profit from the $500 certificates on higher resell.
References
Karmel, R. S. (1998). Creating law at the securities and exchange commission: the lawyer as prosecutor. Law and Contemporary Problems. 61(1) 33-46. Retrieved from the EBSCOhost database
Seaquist, G. (2012). Business Law for Managers. San Diego, CA: Bridgepoint Education, Inc
2. Both the federal and state governments regulate listing and selling stock to the public. The Securities Act of 1933 and the Securities Exchange of 1934 was implemented to protect investors from fraudulent and deceptive activities.
The securities for Private University will not need to be registered with the Security and Exchange Commission (SEC) because, under the Securities Act of 1933, there are several situations in which securities are exempt from registration. One exemption is that nonprofit educational institutions are exempt from having to register secu ...
Rarely does a week go by without the announcement of another major data breach that has put thousands, or even millions of consumers at risk of fraud. From malicious use of compromised credit and debit cards, to increased identity theft risk to drained bank accounts, the threats are real and impact millions of consumers. . A key challenge for the incoming 114th Congress will be to implement long-needed reforms that will protect American consumers personal data from malicious use by criminal hackers.
Cybersecurity: What the GC and CEO Need to KnowShawn Tuma
Shawn Tuma, Cybersecurity & Data Protection Partner at Scheef & Stone, L.L.P., presented to the Dallas Bar Association's Corporate Counsel Section on May 3, 2016. The title was Cybersecurity: What the GC and CEO Need to Know.
A hands-on cybersecurity presentation: preparing an action plan before you are attacked, contracting tips and available insurance coverage.
Join the Atlantic Council's Cyber Statecraft Initiative on February 18 from 3:00 p.m. to 4:30 p.m. for a discussion on the challenges to information sharing and innovative ways to break the logjam.
“Covenants to not compete” with former employers (“noncompetes”) are increasingly required from a wide range of employees, including camp counselors, hairstylists and sandwich-makers. At least half of high-technology employees are required to sign them.
Noncompetes have long been a part of the contract law of most states. Only a few states, like California, do not enforce them.
Noncompetes are increasingly criticized, however, as suppressing industry growth and employee mobility and prosperity. Congress has demanded that the Federal Trade Commission evaluate the fairness of noncompetes. Massachusetts, Virginia and Minnesota have considered bans on noncompetes, with the support of entrepreneurs and venture capitalists, as well as former employees bound by these agreements.
Pro-competition public policies limit the enforcement of noncompetes. Employees thinking of starting a new job or business should consider these limitations as they prepare for their new (self) employment. They should ask themselves these questions:
What should I do about my existing employer's noncompete agreement, if I am considering leaving to join another employer or to start a new company?
What should I ask a prospective employer about noncompetes before I agree to a new job, or begin work?
What are the public policy limitations on noncompete agreements if they cannot be avoided in current or prospective employment?
What are the terms of a noncompete agreement that might be open to negotiation, and what should I ask for?
If I am prevented from doing the kind of work I want to do because of a noncompete agreement with a former employer, do I have any options?
Cybersecurity & Data Protection: What the GC & CEO Need to KnowShawn Tuma
The main points of this presentation are:
(1) Cybersecurity events create a crisis situation and should be treated as such;
(2) Cybersecurity incidents are as much legal events as they are IT or Business / Public Relations events;
(3) Companies must have a cybersecurity breach response plan in place and tested, in advance;
(4) While consumer class action data breach litigation is a significant threat to companies and their leadership, it is not as great of a threat as regulatory enforcement by agencies such as the FTC and SEC, or the shareholder derivative claims for officer and director liability; and
(5) The odds are that all company will be breached, but preparation and diligence can help minimize the likelihood that such a breach from being a catastrophic event.
This presentation addresses the role of attorneys as the first responders in leading their clients through cybersecurity and data loss crisis events. The discussion begins by looking at the risk business have of being the victim of a cybersecurity or data loss incident and examining the nature of such incidents and the crisis environment they create. Then, because of this crisis environment, the need for leadership in helping keep the parties calm, rational, and making deliberate, calculated decisions.
The discussion then explains why cybersecurity events are legal events and legal counsel is the natural leader that should fulfill this role and how they can do so. It will then discuss the process legal counsel will take, including assembling the key players in such an event, both internally and externally. It discusses the obligations for responding to such an event, the steps that must be taken, those that must be considered, and certain factors that go into the decision-making process. It briefly addresses the costs of such an incident and the liability issues that can arise from such an incident and failing to properly respond to the incident. This section includes a discussion of the cybersecurity lawsuit landscape, cybersecurity regulatory landscape, and the issue of cybersecurity-related officer and director liability stemming from shareholder derivative lawsuits based on cybersecurity incidents.
It concludes with a discussion of the steps that companies can take to prepare for and be in a better position to respond to and mitigate the negative repercussions of such an incident.
Protecting Your Consumer Product and Retail Brand in the Social Media EraElder C. Marques
This presentation looks at the promise and perils of social media for retailers and consumer product companies. It surveys some key legal issues relating to the protection of consumer brands online. Social media improves the way that brands can connect with consumers, but it also permits real damage to be done to brands quickly.
Data breach events result in significant losses each year. Our partners at Bonahoom & Bobilya, LLC, created a presentation about understanding the hidden regulatory risks of a data breach so you can keep your company from going out of business.
This presentation has been shared with permission.
1. The security exchange commission (SEC) was formed in 1933 in th.docxjeremylockett77
1. The security exchange commission (SEC) was formed in 1933 in the wake of the great depression. According to Karmel (1998), the SEC engages in a wide range of regulatory activities and some administrative duties but its reputations is mostly that of a prosecutorial agency. As stated by Seaquist (2012), the securities act of 1933 is only applicable to initial public offerings (IPO). To list an IPO it must first be registered with the SEC. Registration is required by law for a corporation to sell stock to the public (Seaquist, 2012). A California private non-profit university wishing to sell “Shares in Learning” certificates for $500 redeemable for two undergraduate courses or one graduate course would not need to register with the SEC to issue the certificates. There are securities that are exempt from registering with the SEC. As stated by Seaquist (2012), one of the securities are exempt from regulation in the Securities Act of 1933 are securities issued by non-profit religious, charitable, educational, benevolent, or fraternal organizations.
If the University was for-profit and operated in all 50 states and wanted to sell the “Shares in Learning” certificate it would still not need to register with the SEC. The supreme court case SEC v W. J. Howey Co. concluded that an investment contract is a security under the act (Seaquist, 2012). As defined by the “Howdy test” an investment contract meets the criteria for a security if a person invests in a common enterprise and reasonably expects a profit derived from the efforts of others (Seaquist, 2012). The “Shares for Learning” certificates do not pass the Howdy test to qualify as a security as there is no reasonable expectation for profit. Despite the fact that the “Shares for Learning” may be resold without limitation it is not feasible to consider making a profit off of the certificates. It seems unreasonable that one would buy the certificates in the hope that the University's leadership would make an effort to increase the cost of tuition to the point that one could turn a profit from the $500 certificates on higher resell.
References
Karmel, R. S. (1998). Creating law at the securities and exchange commission: the lawyer as prosecutor. Law and Contemporary Problems. 61(1) 33-46. Retrieved from the EBSCOhost database
Seaquist, G. (2012). Business Law for Managers. San Diego, CA: Bridgepoint Education, Inc
2. Both the federal and state governments regulate listing and selling stock to the public. The Securities Act of 1933 and the Securities Exchange of 1934 was implemented to protect investors from fraudulent and deceptive activities.
The securities for Private University will not need to be registered with the Security and Exchange Commission (SEC) because, under the Securities Act of 1933, there are several situations in which securities are exempt from registration. One exemption is that nonprofit educational institutions are exempt from having to register secu ...
Rarely does a week go by without the announcement of another major data breach that has put thousands, or even millions of consumers at risk of fraud. From malicious use of compromised credit and debit cards, to increased identity theft risk to drained bank accounts, the threats are real and impact millions of consumers. . A key challenge for the incoming 114th Congress will be to implement long-needed reforms that will protect American consumers personal data from malicious use by criminal hackers.
Cybersecurity: What the GC and CEO Need to KnowShawn Tuma
Shawn Tuma, Cybersecurity & Data Protection Partner at Scheef & Stone, L.L.P., presented to the Dallas Bar Association's Corporate Counsel Section on May 3, 2016. The title was Cybersecurity: What the GC and CEO Need to Know.
A hands-on cybersecurity presentation: preparing an action plan before you are attacked, contracting tips and available insurance coverage.
Join the Atlantic Council's Cyber Statecraft Initiative on February 18 from 3:00 p.m. to 4:30 p.m. for a discussion on the challenges to information sharing and innovative ways to break the logjam.
Similar to Casl and freedom_of_expression_-_final_lsuc_conference_slides (20)
These are the slides from my annual presentation to the Toronto computer Lawyers’ Group on “The year in review in Computer, Internet and E-Commerce Law”. It covered the period from June 2014 to June 2015. The developments included cases from Canada, the U.S. the U.K. and other Commonwealth countries.
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Sustainability has become an increasingly critical topic as the world recognizes the need to protect our planet and its resources for future generations. Sustainability means meeting our current needs without compromising the ability of future generations to meet theirs. It involves long-term planning and consideration of the consequences of our actions. The goal is to create strategies that ensure the long-term viability of People, Planet, and Profit.
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Casl and freedom_of_expression_-_final_lsuc_conference_slides
1. 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
2. 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
3. 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
4. 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
5. 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
6. 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
7. 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
8. 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
9. 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
10. 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
12. 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
14. 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
15. 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.
16. 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
17. 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
19. 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