Presentation is loading. Please wait.

Presentation is loading. Please wait.

Hot Topics in IT Law 2014 Peter Ruby The Eighteenth Annual Canadian IT Law Association Conference October 20, 2014.

Similar presentations


Presentation on theme: "Hot Topics in IT Law 2014 Peter Ruby The Eighteenth Annual Canadian IT Law Association Conference October 20, 2014."— Presentation transcript:

1 Hot Topics in IT Law 2014 Peter Ruby The Eighteenth Annual Canadian IT Law Association Conference October 20, 2014

2 Sattva Capital v. Creston Moly Interpretive principles … the interpretation of contracts has evolved towards a practical, common-sense approach not dominated by technical rules of construction. The overriding concern is to determine “the intent of the parties and the scope of their understanding” To do so, a decision-maker must read the contract as a whole, giving the words used their ordinary and grammatical meaning, consistent with the surrounding circumstances known to the parties at the time of formation of the contract. The meaning of words is often derived from a number of contextual factors, including the purpose of the agreement and the nature of the relationship created by the agreement 2

3 Sattva Capital v. Creston Moly While the surrounding circumstances will be considered in interpreting the terms of a contract, they must never be allowed to overwhelm the words of that agreement The interpretation of a written contractual provision must always be grounded in the text and read in light of the entire contract While the surrounding circumstances are relied upon in the interpretive process, courts cannot use them to deviate from the text such that the court effectively creates a new agreement 3

4 Sattva Capital v. Creston Moly The nature of the evidence that can be relied upon under the rubric of “surrounding circumstances” will necessarily vary from case to case. It does, however, have its limits. It should consist only of objective evidence of the background facts at the time of the execution of the contract, that is, knowledge that was or reasonably ought to have been within the knowledge of both parties at or before the date of contracting. Subject to these requirements and the parol evidence rule discussed below, this includes, in the words of Lord Hoffmann, “absolutely anything which would have affected the way in which the language of the document would have been understood by a reasonable man”. [citations omitted] 4

5 Sattva Capital v. Creston Moly Parol Evidence Rule The parol evidence rule precludes admission of evidence outside the words of the written contract that would add to, subtract from, vary, or contradict a contract that has been wholly reduced to writing To this end, the rule precludes, among other things, evidence of the subjective intentions of the parties… The parol evidence rule does not apply to preclude evidence of the surrounding circumstances. 5

6 Sattva Capital v. Creston Moly Question of Law or Mixed Fact and Law Historically, determining the legal rights and obligations of the parties under a written contract was considered a question of law Contractual interpretation involves issues of mixed fact and law as it is an exercise in which the principles of contractual interpretation are applied to the words of the written contract, considered in light of the factual matrix. … there is no question that many other issues in contract law do engage substantive rules of law: the requirements for the formation of the contract, the capacity of the parties, the requirement that certain contracts be evidenced in writing, and so on. 6

7 Netflix and the CRTC 1080 And I think we have agreed earlier that I can put in "The Government of Ontario believes" "... the best way to accomplish this..." 1081 That is and even playing field: "... is to expand the regulation of new media TV, rather than by lightening the current regulation of traditional TV." 1082 To put a blunt face on it, you are inviting the CRTC to regulate Google, YouTube and Netflix, aren't you, and what advice will you be giving your Minister later on today when the potential headline is, "Government of Ontario wants to tax Netflix" or "Government of Ontario wants to regulate the Internet"? 1083 MR. FINNERTY: Well, in fact what we recommend is that new media broadcasting activities be regulated. We did not recommend that the Internet be regulated, but we are very clear in our submission, both our written submission and in today's presentation, that we believe that new media broadcasting activity should be regulated to support the principles of the Broadcasting Act and to support Ontario's very important entertainment and creative cluster. 7

8 Netflix and the CRTC Insight Productions 7153 I just wanted to speak briefly about Netflix and the OTTs I know regulating the Internet is a very slippery slope but the impact to our cultural industries, as we all know, is huge and will only grow more and more as more OTT services switch on from the United States and around the world As I understand it, Netflix has 4 million subscribers in Canada. At $8 dollars a month, that represents $384 million that Netflix is making in Canada and I understand that all money goes to the United States and there's no tax on any of that money So I'm looking forward in these hearings to hear what Netflix and the other OTTs are proposing to help us in the Canadian content community and, more importantly, what is their contribution going to be to our culture when they are sucking so much money out of the system and creating so much competition. I wish them well, they're a great service, but I look forward to hearing what they are going to propose and what their plans are to participate in a market they are making so much money in. 8

9 Netflix and the CRTC Broadcasting Commission Letter Addressed to Corie Wright (Netflix) Ottawa, 29 September 2014 BY Ms. Corie Wright Netflix Director, Global Public Policy Dear Ms. Wright: 9

10 Netflix and the CRTC The Commission has requested that Netflix provide information related to activities in Canada, including its Canadian subscribers, its investments in Canadian made productions and other matters. This request was made for a very specific purpose. The hearing panel is seeking to better understand Netflix’s innovative approach in providing Canadian-made content to Canadian and non-Canadian audiences alike, through non-traditional, consumer-driven platforms. In addition, Netflix appears to bean increasingly popular service that operates in Canada. … The legislative framework grants the Commission the powers of a superior court of record to enforce its orders. Specifically, under section 16 of the Broadcasting Act, the Commission has the authority to request information from parties, regardless of whether they are Canadian or non-Canadian. As was made clear at the hearing, the Commission has well-established rules that allow it to grant confidential treatment to sensitive information filed by parties. These rules have been consistently and successfully applied for decades, even through the emergence of new technologies and new operators. 10

11 Netflix and the CRTC A company’s refusal to comply with requests and orders duly made at a public hearing is a serious matter. Parties who choose to engage in Commission proceedings, especially large important corporations such as Netflix, cannot unilaterally choose which part of the evidence- gathering proceeding they want to participate in. The Commission views such actions as a direct attempt to undermine its ability to serve Canadians, as well as impair the procedural fairness owed to all participants. … 11

12 Netflix and the CRTC For example, at the hearing, you stated that “most consumers use Netflix and other online video services to supplement their viewing of traditional broadcasting services.” You added that Canadian content is “thriving on Netflix” and that “Netflix’s commitment to Canadian content is market-oriented and driven by subscriber demand and their viewing habits.” Yet, by refusing to provide any supporting evidence, the Commission cannot fully test and evaluate the strengths of Netflix’s argument which, if supported by evidence, may otherwise be very compelling. The Commission cannot carry out its duties based on mere anecdotal information. … 12

13 Netflix and the CRTC In light of the above, Netflix’s intervention and supporting documentation will be removed from the public record of this proceeding on October 2, 2014… As a result, the hearing panel will reach its conclusions based on the remaining evidence on the record. There are a variety of perspectives on the impact of Internet broadcasting in Canada, and the panel will rely on those that are on the public record to make its findings. 13

14 Voltage v. John Doe -Norwich Order against ISP -Voltage had bona fide case THIS COURT ORDERS that: 1. This action shall continue as a specially managed proceeding and be referred to the Office of the Chief Justice for the appointment of a Case Management Judge. 2. TekSavvy Solutions Inc. (TekSavvy) shall disclose to the Plaintiff the contact information, in the form of the names and addresses, to the extent it is able, of the TekSavvy customer accounts (Subscribers) associated with the IP addresses attached as Exhibit B to the affidavit of Barry Logan. 14

15 Voltage v. John Doe 3. All reasonable legal costs, administrative costs and disbursements incurred by TekSavvy in abiding by this Order shall be paid by the Plaintiff to TekSavvy. 4. The reasonable legal costs and disbursements of TekSavvy referred to in paragraph 3 herein shall be paid prior to the release to the Plaintiff of the information referred to in paragraph 2 herein. 5. The Plaintiff shall include a copy of this Order in any correspondence that is sent to any of the Subscribers identified by TekSavvy pursuant to this Order. 6. Any of the Subscribers may request a full copy of these Reasons for Order and Order from the Plaintiff and the Plaintiff shall provide a copy at no charge to each Subscriber requesting a copy. 15

16 Voltage v. John Doe 7. Any separate actions commenced by the Plaintiff against any of the Subscribers shall be case managed in connection with this case. 8. Any correspondence sent by Voltage to any Subscriber shall clearly state in bold type that no Court has yet made a determination that such Subscriber has infringed or is liable in any way for payment of damages. 9. A draft of the proposed letter to be sent to Subscribers shall be provided to the parties to this motion and to the Court and be the subject of a case conference with the Case Management Judge to review and approve the contents of the letter before being sent to any Subscriber. 16

17 Voltage v. John Doe 10. The release of the information by TekSavvy shall remain confidential and not be disclosed to any other parties without further order of the Court and only be used by the Plaintiff in connection with the claims in this action. 11. The Plaintiff shall undertake to the Court not to disclose to the general public by making or issuing a statement to the media any of the information obtained from TekSavvy. 17

18 Peter Ruby

19 Hot Topics in IT Law 2014 Privacy Issues October 2014 Dentons Canada LLP Timothy M. Banks, CIPP/C Partner

20 Legislative rundown 20October 2014 Some Pending developments Timothy M Banks, Partner, Dentons Canada LLP Bill S-4 – now in House of Commons mandatory breach reporting expanded disclosures without consent addresses disclosure in business transactions (finally!) Bill C-13 – back from Committee with minor amendment creates new preservation orders without judicial oversight orders for production of transmission data immunity provision for voluntary cooperation Alberta PIPA – clock is ticking; extension sought

21 Bill S-4, Digital Privacy Act – Mandatory breach reporting As introduced 10.1(6) The notification [to the Commissioner] shall be given as soon as feasible after the organization determines that the breach has occurred. However, if a government institution or part of a government institution requests that the organization delay notification for a criminal investigation relating to the breach, notification shall not be given until the institution or part concerned authorizes the organization to do so. As passed 10.1(6) The notification [to the Commissioner] shall be given as soon as feasible after the organization determines that the breach has occurred. October 2014Timothy M Banks, Partner, Dentons Canada LLP21 Sen. Furey: “Before Bill S-4, we were governed by the common law which would require a company to inform a victim immediately or risk a breach of contract and a negligence lawsuit. As such there were protections for victims before Bill S-4. So we must ask ourselves, does Bill S-4 make things better for the innocent victim whose data has been hacked, whose financial security is at risk? We must make sure that Bill S-4 does not make it worse.” (May ) Michael Crystal also spoke out at committee.

22 Bill S-4, Digital Privacy Act – Voluntary disclosures Current s. 7(3)(d) […] an organization may disclose personal information without the knowledge or consent of the individual only if the disclosure is […] (d) made on the initiative of the organization to an investigative body, a government institution or a part of a government institution and the organization (i) has reasonable grounds to believe that the information relates to a breach of an agreement or a contravention of the laws of Canada, a province or a foreign jurisdiction that has been, is being or is about to be committed, or New s. 7(3)(d), (d.1) & (d.2) […] an organization may disclose personal information without the knowledge or consent of the individual only if the disclosure is […] (d) made on the initiative of the organization to a government institution or a part of a government institution and the organization (i) has reasonable grounds to believe that the information relates to a contravention of the laws of Canada, a province or a foreign jurisdiction that has been, is being or is about to be committed, […] October 2014Timothy M Banks, Partner, Dentons Canada LLP22

23 Bill S-4, Digital Privacy Act – Intra-organization disclosure October 2014Timothy M Banks, Partner, Dentons Canada LLP23 New s. 7(3)(d.1) and (d.2) (d.1) made to another organization and is reasonable for the purposes of investigating a breach of an agreement or a contravention of the laws of Canada or a province that has been, is being or is about to be committed and it is reasonable to expect that disclosure with the knowledge or consent of the individual would compromise the investigation; (d.2) made to another organization and is reasonable for the purposes of detecting or suppressing fraud or of preventing fraud that is likely to be committed and it is reasonable to expect that the disclosure with the knowledge or consent of the individual would compromise the ability to prevent, detect or suppress the fraud;

24 Bill C-13, Protecting Canadians from Online Crime Immunity provision CC: s (1) For greater certainty, no preservation demand, preservation order or production order is necessary for a peace officer or public officer to ask a person to voluntarily preserve data that the person is not prohibited by law from preserving or to voluntarily provide a document to the officer that the person is not prohibited by law from disclosing. (2) A person who preserves data or provides a document in those circumstances does not incur any criminal or civil liability for doing so. PIPEDA: 7(3)(c)(ii): (c.1) […] made to a government institution or part of a government institution that has made a request for the information, identified its lawful authority to obtain the information and indicated that […] R v Spencer, 2014 SCC 43 Neither s (1) of the Criminal Code, nor PIPEDA creates any police search and seizure powers. Section (1) is a declaratory provision that confirms the existing common law powers of police officers to make enquiries. PIPEDA is a statute whose purpose is to increase the protection of personal information. Since in the circumstances of this case the police do not have the power to conduct a search for subscriber information in the absence of exigent circumstances or a reasonable law, the police do not gain a new search power through the combination of a declaratory provision and a provision enacted to promote the protection of personal information. October 2014Timothy M Banks, Partner, Dentons Canada LLP24

25 Right to be forgotten 25October 2014 Google turns the tables Timothy M Banks, Partner, Dentons Canada LLP

26 Background to Google Spain SL, Google Inc. v AEPD, Mario Costeja González October 2014Timothy M Banks, Partner, Dentons Canada LLP26 Mario Costeja González’s name appeared in official notices published in a newspaper in 1998 regarding the forced sale of properties in relation to social security debts The issues between González and the Spanish state were resolved but a Google search kept leading to the notices Originally, the newspaper was in print but had been digitized When asked, the newspaper refused to remove the notices from the online edition or suppress them from being indexed by search engines Google similarly refused to remove / suppress the search results

27 European Court of Justice’s Decision Search engines are data controllers October 2014Timothy M Banks, Partner, Dentons Canada LLP27 “[…] in exploring the internet automatically, constantly and systematically in search of the information which is published there, the operator of a search engine ‘collects’ such data which it subsequently ‘retrieves’, ‘records’ and ‘organises’ within the framework of its indexing programmes, ‘stores’ on its servers and, as the case may be, ‘discloses’ and ‘makes available’ to its users in the form of lists of search results.” (para. 28) “the fact that publishers of websites have the option of indicating to operators of search engines, by means in particular of exclusion protocols such as ‘robot.txt’ or codes such as ‘noindex’ or ‘noarchive’, that they wish specific information published on their site to be wholly or partially excluded from the search engines’ automatic indexes does not mean that, if publishers of websites do not so indicate, the operator of a search engine is released from its responsibility for the processing of personal data that it carries out in the context of the engine’s activity.” (para. 39)

28 European Court of Justice’s Decision Jurisdiction over Google, Inc. October 2014Timothy M Banks, Partner, Dentons Canada LLP28 “Since that display of results is accompanied, on the same page, by the display of advertising linked to the search terms, it is clear that the processing of personal data in question is carried out in the context of the commercial and advertising activity of the controller’s establishment on the territory of a Member State, in this instance Spanish territory.” (para. 57) “[…] processing of personal data is carried out in the context of the activities of an establishment of the controller on the territory of a Member State […] when the operator of a search engine sets up in a Member State a branch or subsidiary which is intended to promote and sell advertising space offered by that engine and which orientates its activity towards the inhabitants of that Member State.” (para. 60)

29 European Court of Justice’s Decision Right to be forgotten October 2014Timothy M Banks, Partner, Dentons Canada LLP29 Test: Is information inaccurate, inadequate, irrelevant or excessive after balancing sensitivity of the information and interest of the public in having access to the information? (para. 92) “As regards a situation such as that at issue in the main proceedings, which concerns the display, in the list of results that the internet user obtains by making a search by means of Google Search on the basis of the data subject’s name, of links to pages of the on-line archives of a daily newspaper that contain announcements mentioning the data subject’s name and relating to a real-estate auction connected with attachment proceedings for the recovery of social security debts, it should be held that, having regard to the sensitivity for the data subject’s private life of the information contained in those announcements and to the fact that its initial publication had taken place 16 years earlier, the data subject establishes a right that that information should no longer be linked to his name by means of such a list.” (para. 98)

30 Google’s reaction October 2014Timothy M Banks, Partner, Dentons Canada LLP30 considers Google search to be a “library catalogue” initially created a tool to make requests believes test is vague and subjective more than 135,000 requests; more than 475,000 URLs Easy: medical history, sexual assault, incidental mentions are removed convicted pedophile about recent conviction or politicians are not removed seven-city tour of European cities to discuss RTF with experts invited by Google as part of “Advisory Council” how to operationalize principles (so that they can be automated)? public consultation denounced by European regulators who have refused to participate

31 Consultation on “Grey Issues” October 2014Timothy M Banks, Partner, Dentons Canada LLP31 how long ago is a conviction spent? what about voluntarily provided sensitive information? unpopular or illegal political speech or activities? is the Internet meant to be a reflection of the world, a parallel world, or something else? should the deletion of link be noted? should requests not fulfilled be noted?

32 Comments & Questions © 2014 Dentons. Dentons is an international legal practice providing client services worldwide through its member firms and affiliates. This publication is not designed to provide legal or other advice and you should not take, or refrain from taking, action based on its content. Please see Dentons.com for Legal Notices. Timothy M. Banks, CIPP/C Partner & Privacy Officer Dentons Canada LLP 400 – 77 King Street West, Toronto, ON M5K 0A1 Phone:


Download ppt "Hot Topics in IT Law 2014 Peter Ruby The Eighteenth Annual Canadian IT Law Association Conference October 20, 2014."

Similar presentations


Ads by Google