CyberLaw Blog

Archive for the ‘Canada’ Category

CA – Social Network Site Privacy: A Comparative Analysis of Six Sites: “(Office of the Privacy Commissioner of Canada)
This report was prepared for the Office of the Privacy Commissioner by Jennifer Barrigar, a consultant and researcher with experience in both privacy law and developments in internet technology. It was originally commissioned in late 2008, and a final report was delivered to the Office in February 2009. Some of the observations made in this report may appear outdated or even incorrect. This is certainly the case with Facebook, one social network that has undertaken successive rounds of privacy amendments in 2009. This is not the case with many of the other social networking sites identified by Ms. Barrigar.

(Via QuickLinks Update.)

CA – Canadian Human Rights Tribunal Rules Internet Hate Provision Unconstitutional: “(Michael Geist)
The Canadian Human Rights Tribunal has ruled that the Internet hate provision found in the Human Rights Act is unconstitutional. The Tribunal ruled that the restriction on speech imposed by the provision is not a reasonable limit under Section 1 of the Charter of Rights and Freedoms.

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(Via QuickLinks Update.)

CA – Facebook needs to improve privacy practices, investigation finds(Press Release)
In order to comply with Canadian privacy law, Facebook must take greater responsibility for the personal information in its care, the Privacy Commissioner of Canada said in announcing the results of an investigation into the popular social networking site’s privacy policies and practices. See Michael Geist’s summary.

(Via QuickLinks Update.)

Canadian Bill Would Force ISPs to Hand Over User Data: “Canada is weighing a bold move that would force Internet service providers to reveal subscriber data without a warrant.”

(Via XBIZ.com | News & Articles.)

Rights commission wants say on online hate; Report rejects bid to only have Criminal Code deal with Internet hatemongers

Don Butler, The Ottawa Citizen, Ottawa Citizen, June 12, 2009 Friday

The Canadian Human Rights Commission wants to stay in the business of policing online hate speech.

In a report tabled in Parliament Thursday, the commission rejected a proposal to leave the task of reining in Internet hatemongers to the Criminal Code.

However, the report suggests several changes to the Canadian Human Rights Act to address shortcomings identified during public consultations.

They include adding a statutory definition of hatred and contempt, repealing penalty provisions, allowing for an award of legal costs in exceptional circumstances and the early dismissal of complaints that don’t meet the definition of hate speech.

Chief Commissioner Jennifer Lynch said the “dual approach” to hate speech the report advocates “provides flexibility that wouldn’t be available if only the Criminal Code is used.”

Without the human rights act as an alternative, she said, few Internet hate complaints would be resolved. Criminal charges are rare, in part because just 12 of 58 Ontario police services have hate specialists, Lynch said.

“If we pulled out of our jurisdiction in this area, there would be a gap that could remain for decades or forever.”

In a report last year, Richard Moon, a University of Windsor law professor, recommended repeal of section 13 of the human rights act, which obliges the commission to screen complaints about online hate.

Moon stood by that recommendation Thursday, saying that even with the proposed changes, section 13 still would be “potentially too broad.”

To justify a dual approach to hate speech, the commission needs to carve out “something that’s distinctive” for section 13, Moon said, so it doesn’t just replicate the Criminal Code provisions.

In order to do that, it probably has to be “a little bit looser” than the criminal law, he said. But “that begins to raise all the concerns about free speech.”

The report divided Jewish groups.

“What the commission is recommending is, in essence, cosmetic tinkering to deal with a human rights system that is in need of a major overhaul,” said Frank Dimant, B’nai Brith Canada’s executive vice president.

But Bernie Farber, chief executive officer of the Canadian Jewish Congress, welcomed the report, saying its recommendations would make human rights commission involvement “more palatable” to the political mainstream.

The key, he said, is its proposal to fast-track the dismissal of complaints that don’t meet the law’s definition of hate speech. “If a case is frivolous, there has to be a provision to get rid of it very quickly.”

Controversy erupted over the impact of section 13 on freedom of speech after a Muslim group filed a complaint against Macleans magazine in 2007. After investigating, the commission dismissed the complaint last year. While the furore over Macleans generated fierce debate, Lynch said the debate “has not yet been balanced.”

Moon agreed, saying the commission’s report was partly an attempt to respond to a “disinformation campaign” mounted by the commission’s critics.

Under the human rights act, the commission can dismiss section 13 complaints, send them for conciliation or refer them to a quasi-judicial body, the Canadian Human Rights Tribunal, for a hearing.

Since passage of the human rights act in 1977, 72 complaints have been filed and accepted under section 13, of which six are still pending.

Forty-nine were resolved without a hearing, and 17 went to the tribunal. Of those, the tribunal has upheld 16, most of which were filed by Ottawa lawyer and anti-hate activist Richard Warman.

Moon picked up on those facts in response to Lynch’s argument that prosecutions would dry up if Internet hatred was left to the police.

The human rights tribunal also hears very few section 13 cases, Moon pointed out. “In the absence of Richard Warman, there really is very little happening under section 13. You take him away, you’ve got nothing.”

The commission’s report says the act should be amended to make it clear section 13 only applies to “ardent and extreme” hate messages.

The Commons committee on justice and human rights will consider the commission’s report as part of its review of section 13 this fall.

Canadian Human Rights Commission releases a new report: Freedom of Expression and Freedom from Hate in the Internet Age

(Ottawa, June 11, 2009) – Today, the Canadian Human Rights Commission recommended to Parliament that the Canadian Human Rights Act continue to be used to protect Canadians from the harm caused by extreme hate messages on the Internet, and proposed changes to make the system more effective.

‘The Canadian Human Rights Act is remedial in nature and focuses on the removal of extreme hate messages. On the other hand, the Criminal Code is the most severe mechanism and aims at punishing criminal intent,’ CHRC Chief Commissioner Jennifer Lynch, Q.C. said upon releasing the Report. ‘Both serve useful purposes in protecting Canadians from discrimination in today’s society.’

The Commission’s Report also proposes improvements to the Canadian Human Rights Act to address shortcomings that were identified through its consultations. These include providing a statutory definition of hatred and contempt, repealing the penalty provision, and including a provision to allow the Commission to summarily dismiss complaints where the messages do not constitute hatred.

As the Report points out, discrimination still exists in Canada despite the important progress made. Human rights commissions and tribunals have a key role to play in safeguarding equality and in protecting and promoting the human rights that are fundamental to Canadian society.

‘The dissemination of hate messages undermines equality and the right of individuals to be free from discrimination,’ said Ms. Lynch. ‘Canada does not recognize a hierarchy of rights; no single right is more important than any other. As a progressive, modern nation, Canada must navigate the conflict and find an appropriate balance between the right to freedom of expression and the right to freedom from hate.’

The Commission’s Special Report, which is based on consultation and expert opinion, is intended to inform the public and Parliamentary debate on this important issue. The Report is now available on the Commission’s website.

Backgrounder: Executive Summary – Special Report to Parliament: Freedom of Expression and Freedom from Hate in the Internet Age

Post from: TorrentFreak

Search For Movie Piracy Equipment Was Invasion of Privacy

A little while ago we reported on a case in the UK where a woman went to the cinema and claimed she was ‘treated like a criminal.’ Searching for movie camming equipment, staff instead found some candy. Because she wouldn’t hand it over, they called security to deal with her and the whole thing descended into farce.

Well, it seems the Canadians have been at it too.

These days cinemas believe that all paying movie-goers are potential Scene pirates, so when a woman took her two daughters to Cinema Guzzo in Montreal to watch Shrek the Third in 2007, they were searched for camming kit. Big trouble ensued.

Finding a stash of illicit smuggled snacks, staff ordered them returned to their vehicle, to be locked securely away so it would be impossible to consume them while watching the movie. The trio complied.

The search of the bags continued and then, jackpot! Although staff didn’t find the latest DV camera, they did find some birth control pills in the older daughter’s bag, an event that didn’t go unnoticed by her mother. Until this point, she had absolutely no idea her child took them. Understandably angry, the mother sued the cinema for invasion of privacy, demanding $60,000 CAD.

Last week a judge ruled that the staff did indeed breach the privacy of the family and ordered the cinema to pay $10,000 CAD ($9,000 USD). Signs at the point of ticket purchase must clearly state that there is a bag search in place and staff must not put their hands inside people’s bags. Cinema Guzzo failed on both counts, not to mention causing sensitive problems within a family and guaranteeing that they never, ever come back as customers. Fail all round then.

Interesting case developing in Canada…

Post from: TorrentFreak

isoHunt Takes on the CRIA in Court

Last September, isoHunt decided to sue the CRIA looking for confirmation that the site is not doing anything illegal. In an act of self defense, isoHunt owner Gary Fung filed a petition (pdf) asking the Court of British Columbia to confirm that isoHunt –and sister sites Torrentbox and Podtropolis– do not infringe copyright.

‘This is our preemptive strike with a narrowly defined petition for Declaratory Relief that we do not infringe, in anticipation they are going to file their own lawsuit that we do infringe (their copyright),’ Fung told TorrentFreak at the time.

IsoHunt has asked the court to decide whether .torrent files, and BitTorrent search engines in particular, are infringing copyright or not. In other words, should BitTorrent search engines be held liable for the .torrent files that might point to copyrighted data? If so, what does this mean for other search engines, and sites such as YouTube?

Today, isoHunt and the CRIA appeared in court. While isoHunt asked the court to rule that they do not break any laws, the CRIA is demanding a full trial against the BitTorrent site.

This landmark case might be the one to define how files can be distributed online. Among other things, isoHunt argues that they are just a search engine, like Google, and that they have no control over the files they find elsewhere on the web. In court today, they showed that a filetype:torrent search for Coldplay on Google returns plenty of torrent files, similar to a search on isoHunt.

All isoHunt does is index other BitTorrent trackers and indexers, without human intervention. The files that can be found on isoHunt are scattered all over the Internet, and even these files are just metadata.

IsoHunt founder Gary Fung told TorrentFreak that the judge converted their petition into action at the end of today’s hearing. ‘He just thinks the issues are too complicated and consequences far reaching legally and technically, and a full trial is more appropriate for discovering all documents,’ Gary said.

‘The important issue is not about the complexity or ramifications of our case which we won’t dispute, but rather CRIA liking to use full action and discovery because it’s costly for all parties and the court and was exactly why we decided to bring our petition first for efficiency before they were going to sue with an action,’ Gary told TorrentFreak in a response. IsoHunt is likely to appeal the order for conversion.

To be continued.

Canadian judge: No warrant needed to see ISP logs – Ars Technica: “Canadian judge: No warrant needed to see ISP logs

A Superior Court in Ontario, Canada has ruled that IP addresses are akin to your home address, and therefore people have no expectation of privacy when it comes to their online activities being accessed by law enforcement. This means that, in Canada, police can potentially request information from your ISP about online activities, and can do so without a warrant.”

Post from: TorrentFreak

All Major Canadian ISPs Slow Down P2P Traffic

Ignited by the Comcast fiasco in the US, the concept of net neutrality has certainly been brought into the mainstream. ISPs are rarely transparent when it comes to their throttling, capping and otherwise interfering behavior, but in Canada they had to come clean due to a CRTC investigation.

The Canadian Radio, Television and Telecommunications Commission (CRTC) is currently looking into the traffic management practices of Canadian ISPs, which came to a head as a result of a dispute between CAIP, and its wholesale provider, Bell. The core objectives of the investigation are to examine the Internet traffic management practices being used, and check that they are in accordance with the Telecommunications Act.

The CRTC is looking at the effects of filtering on both regular customers and wholesalers, and the results of the first round of questions are just in. Even though some of the responses are filed in confidence (summarized by Chris Parsons), there is enough information to conclude that all major ISPs slow down customers, with most specifically targeting peer-to-peer traffic.

In their response to the CRTC investigation, Bell, Cogeco, Rogers and Eastlink all admit to slow down P2P traffic, arguing that it negatively affects network performance. Shaw, one of the other big players, admitted that customers are slowed down, but most of its responses were filed in confidence and P2P was not specifically mentioned.

Bell was more open about its practices, and admits using deep packet inspection (DPI) to throttle its individual customers and wholesalers. On Bell Wireline, P2P traffic is slowed down between 4.30 PM and 2 AM. To cope with the increasing bandwidth demands of its customers, they further plan to disconnect heavy users and introduce metered plans where customers pay for the bandwidth they use.

Cogeco started to throttle P2P users back in 2001, when they were only using a tiny fraction of what they do now. However, it was seen as necessary because of the increasing load these users put on the network. Like other ISPs, Cogeco considered other options such as metered plans, but these would not solve the network ‘abuse’ by P2P users. Furthermore, the ongoing battle with P2P users who strive to evade their management solutions led the ISP to use deep packet inspection (DPI) as well.

Rogers claims it has to throttle P2P users to prevent their network from becoming ‘the world’s buffet,’ as they like to call it. Not only does this affect their network, their bandwidth bills also increased due to the growing popularity of BitTorrent and other filesharing networks. Similar to Bell and Cogeco, Rogers is also known to use DPI. Upstream P2P traffic is slowed down across their entire network, regardless of congestion,

Shaw filed most of its answers in confidence, but provided a rather paradoxical statement which clearly shows that they slow down upstream traffic. ‘The traffic management technologies have reduced the rate of upstream consumption to a more manageable rate,’ they write, claiming that this allows their customers to reach their full contract speeds. Similar to the other ISPs Shaw is predicting that bandwidth usage will grow, and that traffic shaping is essential to manage their network.

In summary, we can conclude that there is no such thing as net neutrality in Canada. All of the larger ISPs slow down their customers, with most of them specifically targeting P2P traffic through deep packet inspection. Because of this, P2P users can’t enjoy the speeds they were promised, and several legitimate businesses whose income depends on delivering content through BitTorrent or other filesharing networks are unable to compete with those who don’t. It’s now up to the CRTC to draw the right conclusions.