For the London Free Press – July 28, 2008

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A recent Supreme Court of Canada decision concerning a libel suit against a radio host referred to the changing attitudes surrounding public comment and defamation in today’s modern and technologically savvy society.

In WIC Radio Ltd. v. Simpson, the court recognized that in an era where everyone can be a publisher, people may react to comments and interpret people’s comments differently than before.

The case considered whether comments made by a well-known radio talk-show host about a social activist were actionable as defamation. The Supreme Court clarified the tests to determine the parameters of the “fair comment” defence.

In his portion of the decision, Justice Louis LeBel stated:

“There is no doubt that a comment may be defamatory. It must simply be borne in mind that just because someone expresses an opinion does not mean that it will be believed and therefore affect its subject’s reputation.

“This is all the more true in an age when the public is exposed to an astounding quantity and variety of commentaries on issues of public interest, ranging from political debate in the House of Commons, to newspaper editorials, to comedians’ satire, to a high school student’s blog. It would quite simply be wrong to assume that the public always takes statements of opinion at face value. Rather, members of the public must be presumed to evaluate comments in accordance with their own knowledge and opinions about the speaker and the subject of the comments.”

The law will never evolve as fast as technology’s effects. Sometimes that’s good, as it allows things to sort themselves out without changes in the law not in our long-term interest. It’s encouraging, however, to see comments like this, as it shows the Supreme Court considers how the law should evolve in modern reality.

It is quite true that the Internet and other methods of communication cause us to rethink many things.

Justice LeBel’s point is that because we are more used to hearing opinions and points of view from diverse and numerous sources, we are less likely to jump to negative conclusions about the individual being commented on. In other words, a negative comment or two from one or two sources is less likely to make the public think less of the individual, which is the basis of defamation.

And a higher threshold for making the public think less of you can make the traditional cease-and-desist letter in response to that comment a risky move. In what has been dubbed the “Streisand effect,” that kind of response can backfire by bringing even more attention to the comment. As well, a perceived over-sensitive reaction to a comment can actually legitimize the comment.

When faced with the publication of a negative comment, don’t just assume it will be believed. A strong reaction in response demanding the comment be deleted, or some other action be taken, might bring more attention to the initial comment, legitimize it and subject you to ridicule.

Boing Boing has a post about a protest in Seattle tomorrow.  People upset at the growing number of CCTV cameras will walk around with huge CCTV cameras on their heads to bring atention to it.   The organizer is quoted as saying:  “The project not only raises the questions of who is watching who and who is watching the watchers, but also … why we are being watched at all”

I guess you could call this security theatre about security theatre.

Read the Boing Boing post

One of the main issues with copyright reform is balance between protecting the creator, and reasonable expectations of consumers.   An important aspect of that is to consider on a practical basis the extent that certain types and amounts of copying are not harmful to the creator.  Indeed, some copying (sometimes referred to as “leakage”) can actually be beneficial to the creator.  In other words,  this is not a zero sum game – both sides can be better off with some copying.

Mike Masnick of Techdirt uses last weekend’s Batman Dark Knight debut to illustrates this point.  It set a record for opening weekend box office sales – yet at the same time was easy to download online.

Read the Techdirt post

Its what?  That was my reaction when I read the headline to Michael Geist’s latest column – but he makes a valid point.    

It builds on the notion I expressed a while back that the bill is a backwards step and out of touch with the reality of today’s technology, marketplace, and consumer rights and expectations.

Read Michael’s column

For the London Free Press – July 21, 2008

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The image of lawyers going to court carrying boxes of paper is slowly becoming obsolete. That paper is being replaced by electronic files.

To encourage the use of electronic documents in court, the Canadian Judicial Council recently published a document drafted by the judges technology advisory committee entitled National Model Practice Direction for the Use of Technology in Civil Litigation. It’s available online at www.cjc-ccm.gc.ca.

The document encourages the use of electronic evidence and provides direction for compatible technologies and consistent use to give all parties to litigation, including the judge, more efficient access to evidence and documents.

It also may push along those lawyers who have not yet embraced electronic documents.

The council and committee are made up of of trial and appellate court judges from across Canada. The committee’s mandate is to make recommendations about effective use of technology in the courts.

The Practice Direction document aims to encourage parties in a proceeding to “consider the ways in which the use of technology might lead to the more efficient conduct of the litigation.”

Though its guidelines aren’t mandatory, the committee encourages their adoption in proceedings:

- where much of the documents are in electronic format;

- where there are are more 1,000 documents or 3,000 pages involved;

- where there are more than three parties;

- and where the proceedings are multi-jurisdictional or cross-border.

The guidelines encourage electronic documents in courts and set out a framework to make the process work smoothly.

The committee encourages parties to start thinking about using Practice Direction guidelines from the earliest stages of proceedings.

For example, considering whether they hold any potentially discoverable electronic documents or whether there are any limits on discovery that may be agreed between the parties.

The time saved by using electronic documents can be significant. For example, being able to search large numbers of documents for content and keywords –just as one searches the Internet — can be a tremendous time-saver.

In addition to making the process more efficient and organized, the guidelines can cut costs.

In his 2007 Civil Justice Reform Project report — available at www.attorneygeneral.jus.gov.on.ca — former Associate Chief Justice of Ontario Coulter Osborne outlines the monetary benefits of adopting technology in civil litigation.

“In a case involving 50,000 documents, the cost of producing five copies of each document at $0.25 per page is $62,500,” he says. “In contrast, scanning the documents by a company offering document and litigation management services may cost approximately $12,000.”

The advantages of electronic evidence are compelling, even in cases with relatively small amounts of documents. Perhaps the paperless courtroom will arrive before the paperless office.

The Federal Privacy Commissioner has initiated some research into public surveillance.   From the Privacy commissioner’s blog:

We’ve decided to commission research into how developments in public surveillance techniques and technology are affecting Canadians, individually and as a society. First off, Queen’s University will be examining the proliferation of surveillance cameras across the country, and report on the trends in the use of public surveillance – although it seems as if we are seeing more and more attempts to expand surveillance networks. As well, the University of Alberta will be taking a detailed look at whether privacy issues are being properly considered in the run-up to the 2010 Olympics.

I look forward to the results of that research.  I subscribe to the view that for the most part public CCTV is security theatre that does not have any significant effect on actual security.

Read the Comissioner’s post for more detail and insight into the issue.

The Supreme Court of Canada has just stated that a privacy commissioner cannot look at documents over which solicitor client priviledge has been claimed in order to determine if priviledge has been properly claimed.   This is in the highly anticipated (well, at least for privacy lawyers) decision in the Canada (Privacy Commissioner) v. Blood Tribe Department of Health case.

For more detail see David Fraser’s post

Lets face it – passwords are a pain.  If they are complex enough to be effective, they are hard to remember.  And the number of passwords we need seems to grow daily.  I believe biometrics is the ultimate answer – but for now, passphrases seem to be the easiest way to remember effective passwords. 

Depending on how many characters the password field has, it can actually be a phrase (eg “password=phrase”), or it might be the first character in each word of a phrase.  Try to work some numbers, symbols, and caps in as well.

Read more detail at itbusiness.ca

For the London Free Press – July 14, 2008

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For 16 days in November 2004, customers of Inform Cycle Ltd. were shocked and embarrassed to find unexpected content on what they believed to be Inform Cycle’s website.

Inform Cycle’s actual site was at informcycle.ca. A month prior, a disgruntled former employee of Inform Cycle had purchased the domain name InformCycle.com. He had hoped this “.ca” to “.com” variation would be enough to wreak havoc with Inform Cycle’s customers and owners.

The former employee, now employed with a competitor, initially set up the Web domain to redirect users to his current employer’s website.

On Nov. 7, 2004, the former employee changed the forwarding address for InformCycle.com to a pornographic website. He then left for vacation in Costa Rica.

In a decision by the Alberta Court of Queen’s Bench released last month, the former employee was ordered to pay Inform Cycle $15,000, including aggravated and punitive damages.

Inform Cycle brought the action against its former employee citing the torts of passing off and defamation.

Passing off is about a misrepresentation that creates a public belief that the party at risk was associated with the action. It’s essentially a form of trade-mark infringement, usually found in cases in which a business leads customers to believe they are selling a better-known competitor’s product.

In this case, through his actions, the former employee tried to make it appear as though Inform Cycle was supporting a porn website. Obviously, the owners of the company were upset by being associated with this content. Without being able to disclose any financial evidence of direct loss of sales, the judge put this loss at $5,000.

Inform Cycle also argued that the former employee’s actions were a defamation of the company’s character. The decision states that the worldwide extent of the defamation over the Internet and the absence of any public apology on the part of the former employee exacerbated the company’s loss.

Though a company does not have a character in the general sense, it nonetheless has a reputation which the court felt deserving of compensation. This loss was put at a further $5,000.

Lastly, the court considered aggravated and punitive damages. Though a corporation can endure defamation of character, it is unable to suffer mental distress or hurt feelings and consequently cannot be compensated for aggravated damages. However, the malicious and oppressive conduct of this defendant so offended the “court’s sense of decency” that the judge awarded punitive damages of $5,000. It was an important deterrent to ensure such a grievous action was not replicated.

The courts recognize that the use of the Internet as a tool for committing such torts has the potential for wider damage than print media. With the assistance of the Internet and e-mail, damage to a character can potentially reach millions within seconds

From the “you’ve got to be kidding department” is a post on the Canadian Privacy Commissioner’s site that says US Homeland Security is interested in a bracelet that air passengers would wear that contains their boarding pass and identity info, tracks them, and can administer a remotely triggered shock to immobilize the passenger.    

Why don’t we just sedate and shackle everyone to the seats?

Read the Privacy Commissioner’s post.