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

For the London Free Press – January 25, 2010

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“Responsible communication” expands media freedom of expression and opens door to more frank discussion of matters of public policy

If you don’t have anything nice to say, be sure to say it in the name of public interest.

The Supreme Court of Canada recently changed defamation law with its ruling in Grant v. Torstar. The case dealt with allegations that a wealthy land developer in Northern Ontario had bypassed regular government approval procedures for building a golf course, courtesy of friends in high places.

The Charter of Rights and Freedoms guarantees freedom of expression. But there’s a limit to what one can express.

Under defamation law, if a statement unjustifiably compromises a person’s reputation, that person can sue for damages.

In recent years, there has been concern that defamation law has resulted in media outlets suffering “libel chill.” The suggestion is the media have toned down or left out what they wished to say, for fear of being sued.

In the Grant v. Torstar decision, the Supreme Court created a new defence to defamation. This “responsible communication” defence effectively expands the freedom of expression afforded to media and opens the door to more frank discussion of matters of public policy.

To succeed, the new defence requires that the publication must be a matter of public interest, and the publisher must have been diligent in trying to verify the allegations. Factors to be considered when measuring diligence are:

• the seriousness of the allegation
• the public importance of the matter
• the urgency of the matter
• the status and reliability of the source
• whether the plaintiff’s version of the story was asked for and accurately reported
• whether including the defamatory statement was justifiable
• whether the statement’s public interest lay in the fact that it was made rather than its truth
• other relevant circumstances.

In other words, it is now possible to inaccurately report something of public interest, but have a viable defence to defamation so long as you take steps to get your facts straight at the outset.

This change is unlikely to result in a media free-for-all. In the decision, Chief Justice Beverley McLachlin cautions “The protection offered by a new defence based on conduct is meaningful for both the publisher and those whose reputations are at stake. The press and others engaged in public communication on matters of public interest, like bloggers, must act carefully, having regard to the injury to reputation that a false statement can cause.”

It is noteworthy that bloggers are explicitly included in this test. Whatever uncertainty existed previously about allegations in cyberspace, the law is now clear: if you make controversial claims, you must do due diligence, however you publish them.

For the London Free Press – December 14, 2009

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COMPUTERS: In a hardware-software legal war, the company reaches a partial, $2.7-million US settlement with knock-off computer maker

Apple’s business model is to sell hardware with software on it. It does not intend for its operating systems to be installed on hardware it doesn’t make and its software licences expressly forbid it.

But that hasn’t stopped people installing Apple operating systems on non-Apple machines, dubbed Hackintoshes, from “hacker” and “Macintosh.” The main attractions are lower prices and wider selection of hardware.

Several companies have created bargain-priced, knock-off computers able to run Apple software. The most widely used is the OSx86 project, which runs the Mac OS X operating system on non-Apple computers with x86 architecture-compatible processors.

Apple software licences strictly prohibit use on computers that aren’t “Apple-labelled.” But companies such as Psystar and PearC have released products that let consumers use Apple software on non-Apple computers at considerable savings.

Apple has fought back in several ways.

The latest Apple OS version 10.6.2 added code to prevent it being used with the Atom chip used in most netbooks, a common Hackintosh platform. But within a week, a Russian-based hacker had circumvented the code.

Apple also has taken its Hackintosh battle to the courts.

On July 3, 2008, Apple filed suit against Psystar Corp. for violating the licence and breaching Apple’s copyright-protected technologies.

The end-user agreement for Mac OS X reads: “You agree not to install, use or run the Apple software on any non-Apple-labelled computer, or to enable others to do so.”

Psystar began selling PCs hacked to run Apple software — and priced more than $2,000 lower than an Apple notebook — in April 2008. After the suit was filed, Psystar kept selling systems and even created new ones.

Last month, the U.S. District Court judge trying the case found Psystar had violated Apple’s copyrights and anti-circumvention provisions of the Digital Millennium Copyright Act.

Two weeks later, Apple filed a motion against Psystar seeking statutory damages of between $500,000 and $4.5 million US, plus attorney’s fees and costs. Apple also wants Psystar permanently enjoined from continuing a business causing “irreparable harm” to Apple’s business, brand and goodwill.

In the most recent development, a partial settlement has been reached. Psystar agreed to stop selling Hackintoshes and pay Apple about $2.7 million in damages in return for dismissal of some Apple claims. But Apple can’t collect until appeals are complete, which may take years.

Though this is a success for Apple, it remains to be seen what effect it will have on the Hackintosh phenomenon as a whole.

The BBC news reports that the UK High Court has ordered that an injunction be served via twitter.  From the article:

The order is to be served against an unknown Twitter user who anonymously posts to the site using the same name as a right-wing political blogger.

The order demands the anonymous Twitter user reveal their identity and stop posing as Donal Blaney, who blogs at a site called Blaney’s Blarney.

The order says the Twitter user is breaching the copyright of Mr Blaney.

We have seen service by Facebook in Canada - perhaps it is inevitable that in the right circumstances we will see service by twitter.

For the London Free Press – August 17, 2009

[Note: Due to a technical glitch, this column has not yet been posted on the Free Press or Canoe websites]

VERDICT:  A recent Ontario Court of Appeal decision showed that it’s possible to enforce oral contracts under the right circumstances 

Oral contracts can be difficult to enforce. As famed movie producer Samuel Goldwyn once observed: “An oral contract is as good as the paper it’s written on.” 

The absence of written documentation can make it very difficult to prove in court that an actual agreement was reached. The judge is left to decipher the intent of the parties based upon what they claim the arrangement was. This is often to the disadvantage of the person claiming an agreement existed, who may have a hard time showing sufficient evidence to prove it. 

But a recent Ontario Court of Appeal decision may lend strength to those trying to enforce promises made through an oral contract. In UBS Securities Canada, Inc. v. Sands Brothers Canada, Ltd. the court found that an oral agreement was sufficient to enforce an agreement to buy shares. 

A representative of the plaintiff, UBS Securities, agreed to an oral contract to buy shares from a representative of the defendant’s company, Sands Brothers Canada. The plaintiff then entered into an agreement to sell the shares to a third party, relying on the oral contract. 

The defendant refused to comply with the terms of the oral contract, claiming that the agreement had not been finalized in writing. The shares remained with Sands Brothers Canada and UBS Securities sued for specific performance to receive the shares for which they contracted. 

The trial judge found in the plaintiff’s favour, deciding that there was a binding and enforceable agreement between the parties. UBS Securities was granted specific performance of the contract, entitling them to the 100,000 shares they were promised. 

Sands Brothers argued UBS Securities was under a duty to mitigate (or reduce their losses) by buying replacement shares at the time of the breach of contract. However, the court found that similar shares were not readily available at the date the contract was breached, leaving them unable to mitigate. 

In addition to the judge finding the plaintiff to be a credible witness, two additional considerations swayed the court in reaching its decision.

First, the plaintiff’s case was enhanced by electronic communications made during the course of the negotiation. The plaintiff produced detailed exchanges, made before the oral contract, outlining specifics of the agreement. The e-mails traced the proposed agreement from its origin until it was nearly completed. 

The use of e-mail resulted in more evidence being available. It resulted in creation of a time-stamped record of interactions that could be used to recreate the intention of the parties. 

Second, the appeal court found that it was common practice in the securities industry to make binding agreements orally. The fast-paced nature of the securities trade makes oral contracts necessary for the market to operate efficiently. In the time necessary to reduce the agreement to writing, the impetus to complete the transaction may have passed. 

So, in some instances, an oral contract is better than the paper it’s written on.

There is always a struggle between the concepts of privacy and confidentiality on one hand, and transparency and freedom on the other.   Dan Michaluk has a case comment in his All About Information blog discussing a recent Ontario decision that sided with the LCBO in its denial to release certain documents under a freedom of information request. (For those of you outside of Ontario, the LCBO is the Ontario government corporation that runs liquor stores. It is thus is subject to typical freedom of information legislation that allows anyone to request to see documents subject to certain exceptions.)

The court said that the LCBO did not have to release certain documents relating to a dispute it settled with a winery, based on solicitor client privilege. 

The court took a broad view of solicitor-client privilege and its treatment under the FIPPA freedom of information legislation, stating that:

“… no party would willingly entertain settlement discussions with a government institution if it knew its confidential settlement discussions would be made public.”

I can’t argue with that.

Michael Geist has an article about the recent lawsuit Bell launched against Rogers after Rogers aired an ad critical of Bell’s internet speed claims.  We have all seen the Bell and Rogers ads that tout their advantages over the other for their various services (better/faster/cheaper/more HD/more channels/less equipment/easier to set up/more reliable…).  

This particular issue deals with internet connection speeds and the “up to…” promises of speed.

I get that these two companies are fighting hard for the same customers –  but I suspect consumers are getting more jaded rather than enlightened or convinced by the ads.

For the London Free Press – July 27, 2009

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Seems that an Australian court ordered a default judgement to be served on two defendants by sending a message to their Facebook pages.  See this article in the Australian Morning Herald.

Cory Doctorow of Boing boing comments on how this is a bad idea, saying how “It’s like serving notice on me by sticking a post-it on a toilet wall on which someone has written “Cory wuz heer” and declaring it legal.”

I wouldn’t go that far – this is hardly going to become a standard method of service. 

Kudos to the court in my view – this would be more effective than the usual last resort of publishing a notice in a local newspaper.

A Canoe tech article says that the owner of the isohunt search engine for bitorrent files has asked the BC Supreme court to rule on whether it violates the copyright Act.

Seems that the Canadian Recording Industry Association has demanded that he take down the links – so rather than waiting for them to take action, he went direct to the courts to ask the question.

In essence, the issue is whether this site is no different than any search engine like Google, with no responsibility over what users search for and do with it when they find what they want – or does it somehow cross a line that makes it liable for any illegal or unauthorized copying that those that use it do.

This could prove to be interesting, and could have broader copyright implications affecting things beyond bittorrent search engines.  This is the type of case than can lead to unintended consequences, so one hopes that the court will take a considered look at the issues in general and the broader consequences of a ruling.