Law Times

lAw Times • April 26, 2010 An online resource 1.800.263.3269 Focus On IT/TELECOMMUNICATIONS Is PIPEDA relevant in age of social networking? Privacy commissioner raises questions as courts grapple with evolving technology BY PAUL BRENT For Law Times appears to be consumer privacy given questions about protecting it on the one hand and the casual ease with which people give it up through social media on the other. "To me the story of this year is Face- W book," says Gil Zvulony, a Toronto defa- mation lawyer who focuses on Internet issues. Th e popular social media site, with about 350 million users worldwide, has reached a "tipping point" by virtue of its increasing ubiquity, he notes. "I have seen a lot of cases come my way where they relate to Facebook." As well, over the past year, the net- working site drew the ire of the fed- eral privacy commissioner over its pri- vacy policies and practices. It has also quickly become a key tool in employ- ment and defamation cases. "As a litigator, before I sue some- body, I will go see what they have on Facebook," says Zvulony. "People put their date of birth on there; that is gold- en information." However, such critical personal informa- tion can also result in identity theft, defa- mation claims, and online harassment. "Fa- cebook crosses so many sorts of legal issues, international borders," Zvulony notes. Motions to produce information con- tained on Facebook pages in civil cases have been on the rise over the past year, says Pamela Pengelley, a lawyer with Cozen O'Connor in Toronto. "You see There is a need to consider whether PIPEDA 'remains suited for the next 10 years,' says Jennifer Stoddart. it a lot in employment cases, family law cases, and criminal." Just what is private and what is pub- lic on social networking sites is still in a state of fl ux due to two recent personal injury cases: Leduc v. Roman and Schuster v. Royal & Sun Alliance Insurance Co. of Canada. In Leduc, an individual injured in an auto accident claimed that as a re- sult of the defendant's negligence, his en- joyment of life had declined. Th e judge ordered the preservation and production of his Facebook information, marking hen it comes to issues of law in the Internet age, the overarching concern the fi rst time a Canadian court had de- cided to require an injured person to disclose private materials from the site. In Schuster, the plaintiff sued her insurance company for compensation for injuries suff ered in an auto acci- dent, claiming they aff ected her work and social life. Th e lawyer for the in- surance company sought access to the plaintiff 's private Facebook account that allowed access to 67 friends. Th e judge ruled the plaintiff 's private ac- count wasn't created for public view- ing and that the defending insurance company hadn't provided evidence that there was relevant information requiring preservation. "Just because a person hasn't told you that they have a Facebook site, it doesn't mean that you can go and get production of it," says Pengelley, refer- ring to the Schuster ruling. "You have to prove that there is something rel- evant on the site." In that case, Justice David Price cit- ed the recent declaration by federal Pri- vacy Commissioner Jennifer Stoddart that Facebook users have a privacy in- terest in their profi les that the Personal Information Protection and Electronic Documents Act seeks to protect. Last July, the privacy watchdog for- mally complained that the social net- working site didn't properly disclose to users the extent to which it could share personally identifi able information with its partners and advertisers. A month later, Facebook agreed to change its pri- vacy system to make it more transparent for users, a proposal it implemented at the end of the year. But at the start of this year, Stoddart's offi ce fi led another investigation into Fa- cebook surrounding a new tool the site introduced in its recent revamp requiring users to review their policy settings. In a press release, Elizabeth Denham, the as- sistant privacy commissioner who headed the original investigation and followup, said: "Some Facebook users are disap- pointed by certain changes being made to the site — changes that were supposed to strengthen their privacy and the pro- tection of their personal information." In launching its second investigation into the social media site, the commission- er's offi ce said it would "follow up" with Facebook as it introduces new changes as part of its commitment last August to re- solve all privacy concerns within a year. In a February 2010 speech at the an- nual privacy and security conference in Vancouver, Stoddart noted the rapid pace of change during her seven-year term, which ends this year. "When I took over as privacy commissioner, Facebook didn't exist," she said. "Neither did Twit- ter, Flickr, YouTube, Google Street View, Foursquare, iPods, and all the many novel ways in which people now routinely con- nect with the rest of the world." Given the pace of technological change, it's impossible to predict the fu- ture, she added. "But what we can say for certain is that the regulatory framework we have in place now for the protection of privacy and personal information is al- ready being sorely tested. We have bent and stretched it in many diff erent ways." As a result, Stoddart said there is a need to "dramatically modernize" the federal Privacy Act and to consider whether the private-sector PIPEDA "re- mains suited for the next 10 years." LT Time for a levy on iPods? BY PAUL BRENT For Law Times industry harder than the en- tertainment business, where music, books, movies, and TV shows can be copied easily and fl awlessly with little regard to copyright. T Charlie Angus, a musician, writer, and broadcaster turned federal MP, has put the spot- light on the digital dilemma with two reform proposals that would extend the private copy- ing levy to iPods and other au- dio recording devices as well as amending the Copyright Act to introduce a fair-use system. Of the two proposals, the NDP MP's private member's bill to expand the 13-year-old private copying levy has drawn he transition from an analog to digital world has perhaps hit no the most attention. With some form of copyright reform ex- pected in the near future, the three opposition parties have given the bill non-binding support in Parliament. Th e Conservatives, meanwhile, are voting against it. "Digital locks and suing fans are not going to prevent people from copy- ing music from one format to another," Angus said while introducing the bill. "Th e levy is a solution that works. By updating it, we will ensure that artists are getting paid for their work and that consumers aren't criminalized for moving their legally obtained music from one format to another." Angus' fair-dealing motion would expand the exemption to non-commercial copyright in- fringements for researchers, inno- vators, educators, and the creative community when copyrighted material is used appropriately. "Th e fair dealing provi- sions of the Copyright Act have been characterized by the Supreme Court as a key user's right," he said. "Th e futures of the creative, innovation, and education communities all hinge on a reasonable inter- pretation of fair dealing." Nevertheless, the iPod levy bill is unlikely to succeed and is not the best way to ensure art- ists receive proper compensation for their work, says Barry Sook- man, co-chairman of McCarthy Tétrault LLP's technology law group. "You can't just rush into a levy. You have got to actu- ally make a policy decision that works from an economic per- spective [and] actually achieves the goals without detrimentally impacting on the sales of the de- vices." Th e non-profi t Canadian www.lawtimesnews.com Private Copying Collective already collects a levy on CD sales in Canada and in 2007 suggested a fee of $75 on iPod- type devices with a 30-gigabyte memory. Such a move would signifi cantly increase prices, according to Ottawa copyright lawyer Howard Knopf on his Excess Copyright blog. Knopf contends consumers could easily sidestep such a tax since "many Canadians would take the very easy step of buying such a device from the U.S.A. Why would a rational consumer pay a face value diff erence of more than $100 with the Cana- dian dollar at par or better?" Where to start and end with a levy on an audio recording device also becomes diffi cult with the explosion of electronic gadgets that can store music and movies, including cell- phones, smart phones, external hard drives, and laptops, Knopf points out. "So the [copying collective] could seek a tariff on all kinds of devices at the Copy- right Board, which has shown considerable sympathy with extending this levy scheme as far as it can be pushed and then some. Th e Federal Court of Appeal has not once but twice had to tell the Copyright Board that it cannot levy devices." Th e Canadian recording in- dustry, which has maintained a low profi le during the debate, argues a levy isn't enough. "Our goal ultimately is to establish a thriving, legitimate digital mu- sic market in Canada in which artists, record labels, and other rights holders are fairly com- pensated. No levy can or will ever replace such a market," says Canadian Recording In- dustry Association president See Fair-use, page 16 pAge 13

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