ipblog.ca has a good post entitled The Perils of Co-ownership of Intellectual Property that refers to a case where a trade-mark application was held invalid.  The reason – it was registered by one entity in its own name, when it was actually owned jointly by 2 parties.

For the London Free Press – October 25, 2010

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Postings to social network sites can be forced into evidence in legal proceedings

It seems like everybody is on Facebook or a similar social networking site. The prevalence of such websites has raised interesting questions relating to the level of privacy that should be afforded to users.

People often post intimate details concerning their lives and daily routines on Facebook. From a lawyer’s perspective, scattered among the minutia may lie pertinent information or evidence relating to legal proceedings the user is a party to.

Canada has some leading jurisprudence relating to this issue. A recent New York decision, Romano versus Steelcase, dealt with the defendant’s efforts to be granted access to the plaintiff’s current and historical Facebook and MySpace accounts.

The New York judge in Romano relied on the principles from the leading Ontario case on the matter, Leduc versus Roman from 2009. The judge in Romano echoed the reasoning in Leduc, demonstrating the court’s unwillingness to allow users a high level of protection.

In Leduc, the court held the moving party did not have the right to access the Facebook profile as a right. However, the court went on to state if the moving party can produce sufficient evidence there is information of relevance on the profile then the court can order the production of the evidence.

Based on the court’s finding it seems the level of privacy that will be afforded to Facebook profiles is considerably less than that afforded to other electronic communications, such as e-mails. The very purpose of social networking provides the reasoning behind this position.

The court noted in Leduc that to permit a party claiming damages for loss of enjoyment of life to hide behind self-set privacy controls on a website – the very purpose of which is to enable people to share information – risks depriving the opposing party of access to potentially pertinent information required for a fair trial.

Thus a high level of privacy will not attach to Facebook profiles because the very purpose of such profiles is to broadcast personal information to an audience or the public. If the moving party can demonstrate to the court that the profile might contain relevant evidence, the court can extinguish the user’s privacy rights and order the production of the evidence.

It should be noted if one’s profile is open to the public all information contained in it is fair game and no court order is required. A lawyer cannot however add a party as a friend in order to gain access to private information; this is an ethical breach.

The reasoning in Leduc has been adopted and followed in numerous cases in Ontario. It seems one should not assume information broadcast on their private profile is protected from the court’s gaze.

The lesson handed down by Leduc is we should be careful about what we post on social networking sites, as that information could end up being thrust under the microscope and laid bare in court.

Many people, including myself, predicted that 2010 would be the year of the tablet.  After speculation that Hewlett Packard might not actually build a Windows 7 tablet, engadget and CNET are reporting that it is indeed arriving.

So that means our tablet choice will include (some of these are just arriving, or scheduled to arrive over the next few months)  the iPad (which is setting the bar and selling impressively – but is missing some things), the HP Slate 500 Win 7 (some feel that windows 7 is not a good fit for a tablet), a Blackberry tablet, Android based tablets (such as the Samsung Galaxy Tab),  Palm / WebOS tablets, and perhaps even Windows Phone 7 based tablets. 

So lots of choice, and lots of opinions on the pros and cons of each.  I want one, and think they will forever change how we consume information and media. 

So what am I doing about it?  I’m going to impatiently wait until Apple brings out ipad version 2, then compare the competition to make a decision. 

It might be interesting to keep a foot in multiple O/S doors by having a tablet and smartphone using different ones.

Take a look at this post entitled Don’t Let Halloween Haunt You for examples of spam messages to avoid in case they get through your filters.

As I’ve said before, be skeptical about communications that carry either really good news, really bad news, or that require some immediate action to avoid a dire consequence.

That’s the title of my Slaw post for today.  It reads as follows.

There has been a lot of press over the Privacy Commissioner’s decision that the Google Street View collection of information from unprotected wifi signals breached PIPEDA.  See the press release, and the decision.  See examples of press reports by the CBC and  CTV.   The CTV report says that Spanish regulators announced they were filing a lawsuit against Google for the incident, seeking millions in fines.

I know nothing more about this than I read in the press – but I think we need to put Google’s actions in perspective here.  Yes, it should not have collected that data.  And yes, PIPEDA and the privacy laws of other counties were violated.  And yes, it should take steps to ensure something like this won’t happen again.

But when Google realized what it had done, it immediately stopped collecting it, isolated the information, saved it for the sole purpose of allowing investigators to look at it with a promise to destroy it once that was done, alerted the public and privacy authorities, and cooperated freely and frankly with privacy authorities.  Personal information was not released to anyone or used for any improper purpose.  No actual harm occured to anyone.  It was an error, not an intentional flouting of privacy laws.

So despite the fact that inappropriate collection occurred, its reaction was a model of cooperation consistent with its “Do no evil” mantra. 

In my view, attempts by regulators to collect massive fines are misguided.  It in essence punishes for making it public and cooperating, not for the improper collection.  Facing the spectre of fines would make companies want to keep such incidents to themselves – which is not what regulators want.

Brian Bowman has a post on his On the Cutting Edge blog that says an Alberta court ruled that the University of Calgary violated students’ charter rights when it sanctioned them for posting critical comments about a professor on Facebook. 

Omar also mentioned it in a Slaw post.  (Somehow I missed them at the time.)

That is noteworthy for its position on the controversial issue of what limits there ought to be on what one can say about another on social media.  Also for the fact that the court decided that the Charter of Rights – which applies  only to government - extends its reach to bodies created and supported by government.   At least in the way it is done in Alberta.

 For the London Free Press – October 18, 2010

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Global Privacy Enforcement Network aids cross-border co-operation to enforce privacy laws

In the age of Facebook and MySpace, privacy issues do not stop at national boundaries. More and more, business relies on a flow of personal information across both national and jurisdictional borders. As a result, privacy enforcers have begun to strengthen their capacity for cross-border co-operation.

Thirteen privacy enforcement authorities, including Canada’s Office of the Privacy Commissioner, recently formed the Global Privacy Enforcement Network (GPEN) to aid cross-border co-operation to enforce privacy laws. Other countries with privacy enforcement authorities include the U.S., France, New Zealand, Israel, Australia, Ireland, Spain, the United Kingdom, the Netherlands and Germany.

The global network will be responsible for enforcing laws and investigations to protect personal data. It will encourage its members to develop shared enforcement policies, and support joint enforcement initiatives.

The network does not create new legally binding obligations among the participants. Participation is voluntary, and all member authorities remain subject to domestic and international law. But though each country has unique privacy laws, the protections are similar.

The network has set out steps to further international privacy enforcement co-operation. This includes sharing information about effective investigative techniques and enforcement strategies. It will also organize training sessions on privacy and data security issues with non-governmental advisers from industry, academia, international organizations and professional associations.

The organization is supported by the Organization for Economic Co-operation and Development that, in 2007, adopted a recommendation of cross-border co-operation protecting privacy, calling for member countries to foster the establishment of an informal network of privacy enforcement authorities.

Cross-border privacy enforcement has come a long way over the past few years. As recently as 2007, the Canadian privacy commissioner declined to investigate an American website called Abika that was accused of collecting and disclosing personal information about Canadian citizens without their consent. For a fee, Abika would provide its customers with criminal record searches, e-mail traces, unlisted and cellphone numbers and licence plate details.

The privacy commissioner refused to investigate Abika, thinking it had no authority to do so. Because Abika refused to provide the names of its Canadian-based sources, there wasn’t any means of investigating those companies.

Instead, the privacy commissioner was forced to rely on the U.S. Federal Trade Commission for enforcement. The commission found Abika violated privacy laws, and placed an injunction on Abika prohibiting it from trading personal information without express written permission from the consumer.

Upon review of the matter, the Federal Court of Canada ordered the privacy commissioner to reinvestigate the issue. Although the privacy commissioner may not have effective enforcement mechanisms, the prevailing legislation – the Personal Information and Protection of Electronic Documents Act – still gave the commissioner the power to investigate complaints relating to the transborder flow of personal information.

That decision, the formation of the Global Privacy Enforcement Network, and the Canadian Privacy Commissioner’s investigations of companies such as Facebook, show that privacy enforcement will occur without national borders getting in the way

Mitch Joel has an excellent post entitled What You Tell a Search Box that talks about the trend to social search (such as the  new Bing / Facebook search results that will factor your facebook friend’s “likes” into your search results).

Given how much we trust our friends’ recomendations, it makes a lot of sense.  But the dark side to be wary about is how much info about us our searches reveal, if that info was ever made public, or disclosed even to our friends.

The entire post is worth reading.  Here’s an excerpt:

Here’s a simple exercise:

Write down everything (and I mean EVERYTHING) you search for online in one week. Save it in a document. After that week, go and take a look at that list. Now ask yourself the question again: do you want all of this public?

It’s the little big things.

Who cares if people know you like a local pizza joint, or that you recommend a certain coffee house? That’s fine and that’s the majority of searches, but dig a little deeper. Imagine you have just been diagnosed with MS. You haven’t told your family or boss yet. You’re looking for support, trying to figure stuff out. You definitely don’t want the insurance companies to know just yet. Would you like that public? How about this: your child is acting up in school (in this instance, your kid is the bully). You start looking online for resources and information, would you like people to know that your kid is acting up? Take any addiction (drugs, alcohol, gambling, etc…), medical issue or any other personal issue (like the odd time you watch some adult content online), and keep asking yourself if you would like all of this made public?

That’s the title of my Slaw post for today.  It reads as follows.

In her annual report to Parliament on the Privacy Act last week, the federal Privacy Commissioner expressed concerns about several issues.  The Privacy Act deals with privacy issues for the Federal government.

Issues included the way surplus equipment and paper is disposed, and improper and unauthorized access to documents.  Highlights from the press release include:

 The press release is worth a read – both to see what the issues are – and to consider that the same issues could apply to any government or commercial enterprise – including our clients, and our law firms.

That’s the title of my Slaw post for today.  It reads as follows.

Dan wrote yesterday about what to do if hackers steal your online accounts.  As a companion to that, Yahoo!Canada has an article from Real Simple magazine entitled Scams Even you Could Fall For – And How to Avoid Them. 

It talks about things like phony gift card offers, mails that look like they come from your bank, sellers of fake items like event tickets, and fake charities. It also suggests some resources to use for checking to see if things are legit.  Sometimes just doing a Google or Bing search will ferret out if something is a common scam.

Fraudsters and malware distributors are always trying to stay 1 step ahead of spam filters, and often manage to get things through that look amazingly like legitimate messages from Facebook or other social networking sites.

Remember to be skeptical about communications that carry either really good news, really bad news, or that require some immediate action to avoid a dire consequence.  If, for example, you receive a message that purports to be from your bank – just call the bank at the number you have for them (not a number that thecommunication tells you.)  Instead of clicking on a link that says its to a facebook message, just log onto facebook in the normal way to see if there is a message there.