Tag Archives: In the press

Holistic strategy is better for privacy laws

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For the London Free Press – May 6, 2013 – Read this at lfpress.com

There has been controversy in the United States in the last few weeks about their patchwork of privacy laws in contrast to the holistic approach favoured by Canada and the European Union. This matters as commerce and cloud services become more borderless.

The U.S. approach to privacy has been to enact laws that apply to narrow areas as problems are perceived, rather than to look at privacy as a broader subject to regulate.

For example, in 1988 the United States Congress passed the Video Privacy and Protection Act to prevent wrongful disclosure of videotape rental or sale records. Though such laws may be effective in the short term, they have a narrow focus, fail to address future technology and leave gaps. And the process to change existing laws is typically glacier slow.

Some privacy regulation is the U.S, isn’t based on privacy laws at all, but on regulatory action and class-action lawsuits based on notions such as the breach of a company’s privacy policy. In other words, the wrong was a breach of a privacy promise, not a breach of a legal privacy requirement.

In contrast, the Canadian and European model deals with privacy on a holistic basis. The holistic approach allows for existing privacy laws to adapt to new technologies rather than having to create new privacy laws in response to new technologies.

In any given Canadian province there are likely no more than two privacy statutes that apply to the private sector.

One applies to personal information generally, and there’s often a separate one that applies to medical records. This is a far more stable, all-encompassing and technology-neutral approach to privacy issues than the U.S. model.

Peter Fleischer, global privacy counsel at Google, recently commented on this issue and his desire to see the United States enact better privacy laws. He notes not a single country has followed the U.S. model.

Fleischer praises European privacy laws for their simplicity and warns if changes aren’t made to the U.S. approach “privacy will prove a serious roadblock to any such future trade back (with the European Union), as long as some people in Europe can argue that the U.S. has not-effective privacy laws.”

Fleischer provides the example of Uruguay that has looked to Spain. as opposed to the U.S., when drafting its recent privacy laws.

In the long run, the holistic approach is a far better and more effective model to protect privacy interests. The holistic approach makes it easier for businesses to understand their obligations and comply, easier for individuals to know where they stand, has less risk of leaving privacy gaps, and makes it easier to deal internationally when other countries require privacy protection as a condition of personal information crossing borders.

As the world continues to emerge from the global economic crisis and the trend toward global integration continues, Canada’s holistic privacy framework will help us take advantage of global opportunities while a less-effective framework could damage U.S. efforts.

http://harrisonpensa.com/lawyers/david-canton

Gadgets encroach on privacy

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For the London Free Press – April 8, 2013 – Read this at lfpress.com 

Machines that become self-aware and rebel against their human creators is a popular science fiction theme. A threat more immediate than Terminator’s Skynet or BSG’s rebelling “toasters” is that of our belongings spying on us.

As technology becomes more sophisticated, it enables more intrusion into individual privacy. Our belongings increasingly generate information about us, and the Internet will make more of our belongings — such as our homes and appliances — connected and able to share that information.

The use of data tracking and collecting by cars and smartphones are good examples.

Our smartphones and the applications we use every day are collecting more and more information about us. The inclusion of “black boxes” in cars also allows this same intrusion.

Many of us have smartphones. This new terminology provides an accurate description of how powerful these devices have become. Most people are focused, and understandably excited, about the capabilities they have provided. But there is a less of a focus on the sheer amount of personal information they can provide to various third parties and what potential impact this could have in the future.

The average smartphone user would likely use their phone for e-mail, Facebook, Twitter, GPS and even personal banking. With simple access to a person’s phone, organizations would be able to obtain almost a complete profile of a person and have access to all of their personal data. Modern smartphones contain little in terms of disclosing who and where this information is held and what steps are being taken to protect it.

Personal data collection has also increased considerably in cars. Though the concept of a talking car in Knight Rider seemed to be a ridiculous idea when the show first aired, we are closer to that day than ever.

For example, some car insurance companies offer discounts to people who provide them with black-box information about their cars, such as where and when they drive and how fast they drive. Though this information can be useful assisting insurance adjusters and the police to determine liability in the event of a crash, this also can be viewed as extremely intrusive.

This is not meant to suggest technological developments should be stopped, but there does need to be a real effort to think things through. What information is collected? Is that information really needed? Is it stored on the device or somewhere else? For how long is it stored? Who has access to it? For what purpose can they use it? If others have access, is it made anonymous or tied to an individual? What choices do we as individuals have over this information?

Do we feel comfortable with cellphone providers, car manufacturers, insurance companies and police knowing our every move?

How the dissemination of this information will be controlled by the courts and balanced with individual rights will develop over time. The Ontario Court of Appeal recently held that police can access, without a warrant, a phone of a person being arrested that does not contain a passcode.

On the other hand, the Supreme Court of Canada recently ruled a wiretap warrant is needed for police to obtain access to text messages in the possession of a cell company.

Some argue this collection and sharing of information should be OK for those who have “nothing to hide”, but it is a much more complex matter than that.

www.harrisonpensa.com/lawyers/david-canton

Digital shift puts analogue in museums

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For the London Free Press – February 25, 2013 – Read this at lfpress.com

Over the last decade, we have been in the midst of an extraordinary technological revolution: the switch from analogue to digital.

Though this shift has been rapid, we’ve only seen the tip of the iceberg when it comes to technology and devices that are bound to change our lives.

A few short years ago, it was unthinkable that every household would not have a landline telephone. Now, the landline represents one of the final staples of the analogue world. It’s likely that no one under the age of 25 will ever have one.

In the corporate world, desktop phones are facing the same doomed fate as companies try to become more efficient and productive. The use of programs such as Skype for long distance telephony is one example.

Traditional business phone technology suppliers are being replaced in the digital world by companies such as Microsoft, whose Lync product offers integration of traditional phone use with other platforms such as e-mail and document management systems.

The shift from analogue to digital television appears to be almost complete. Big box tube TV’s and rabbit ears have been replaced by sleek and thin HDTVs and PVRs, giving the consumer access to hundreds of channels and endless content on demand.

With the possibilities offered on the Internet, these changes have forced traditional telephone and TV providers to increase their investment from not only controlling the distribution of content but to owning and controlling the content itself. For example, two of Canada’s biggest corporate rivals, Bell and Rogers, did the once unthinkable and became partners in the ownership of the parent company of the Toronto Maple Leafs.

The move to digital has led to possibilities such as unified communications where different communication modes can be consolidated on almost any platform in almost any location using a myriad of different devices.

Consumers are starting to expect that if they purchase certain content it be freely available on all of their devices. For example, movie fans who subscribe to Netflix or hockey fans that subscribe to the NHL’s Gamecentre Live expect to be able to access these services at anytime and anywhere whether it’s on their televisions, computers, tablets, cellphones, or gaming devices (such as PlayStation 3, Xbox 360, Wii).

The Internet of things will mean more devices will talk to us and with each other. And wearable computing is here — such as the Pebble watch, and Google’s project glass.

The Pebble Watch is a ground-breaking device that uses interface of a wristwatch as a control and display device for a smart phone. Google’s Project Glass will integrate smartphone technology into eye wear and operate through voice commands.

The digital revolution is still in its infancy. More interoperability and uses will develop The direction communication and the consumption of information and entertainment will take is clear — but details are not.

www.harrisonpensa.com/lawyers/david-canton

Sharing private information brings legal issues with it

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For the London Free Press – February 4, 2013

Read this at lfpress.com

Social media has opened the floodgates for the public dissemination of information about our private lives. Websites such as Facebook, Twitter, Instagram and Pinterest provide an unprecedented ability to share our thoughts, photographs, activities, interests and relationship status with thousands of users around the world.

This sharing brings legal issues with it when unintended users are able to access one’s apparent “private” information.

Recent Ontario court decisions illustrate the uncertain state of the law as to whether social media content should be available as evidence in legal proceedings.

In the case of Stewart v. Kempster, the plaintiff was in a car crash that she claimed caused significant and permanent physical injuries. The plaintiff alleged her enjoyment of life had decreased greatly since the accident.

The plaintiff had regularly posted photographs on Facebook for her friends and family to see. The defendant wanted those photographs admitted as evidence in the trial to rebut the plaintiff’s claim that the crash reduced her activities. Although the plaintiff had an expectation that the Facebook photographs would not be seen by unintended viewers, the court had to consider whether the interests of justice outweighed such privacy interests.

The court refused to order production of the plaintiff’s Facebook photographs. It reasoned that the plaintiff did not have any photographs that were publicly accessible, did not intend to rely on any photographs to demonstrate her pre-collision health, and had only allowed 139 “friends” (out of approximately one billion Facebook users) to access the photographs. Before deciding that, the court reviewed the photographs to determine whether they were even relevant.

In making its decision, the court referred to an earlier decision in Murphy v. Perger where the court did order a plaintiff’s Facebook photos to be produced. The plaintiff in Murphy had also been involved in a car crash and claimed she suffered significant reductions to her enjoyment of life. The court considered the privacy interests involved and ultimately ordered production of the photographs for several reasons:

The plaintiff had posted photographs on the publicly accessible portion of her Facebook account that led the court to infer that similar photographs would be posted on the private portion of her account.

The plaintiff relied on photographs taken prior to the crash to demonstrate the impact of the crash on her prior lifestyle. It would therefore have been unfairly prejudicial to not show photographs depicting her post-collision condition.

The plaintiff didn’t have a reasonable expectation of privacy in her photographs because she permitted 366 people to access her private content and allowed public access to other photographs.

These decisions show that the law evolves to address new technologies. Social media sites allow users to set security settings, but this does not automatically ensure that “private” content will be forever sealed away.

Social media users should take a moment to think before they post because they may run the risk of exposing their private lives to the public spotlight — or at the very least to someone on the opposite side of a lawsuit.

www.harrisonpensa.com/lawyers/david-canton

 

ANTI-SPAM ACT: Penalties are in the millions but even one e-mail has potential to be spam

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For the London Free Press – January 21, 2013

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Industry Canada recently released its second attempt at regulations under the Anti-spam Act. These regulations are important for the practical application of the act because they help define what is and is not spam.

The regulations are subject to a 30-day commentary period, but because they’re a second draft, significant changes are unlikely.

Though most people will welcome the thought of legislation that reduces spam, the legislation has a dark side.

The act defines spam so broadly that it will affect how businesses and charities operate. Its definition of spam goes far beyond what the average person would consider to be spam. Indeed, one e-mail or text message or Twitter direct message sent from one person to another has the potential to be spam.

The act’s biggest impact may not be on the amount of spam we receive, but rather the compliance headache it will cause to the average business or charity.

Any electronic message with any kind of commercial purpose is caught, subject to a myriad of complex provisions setting out exceptions and consent requirements. And because the onus is on the sender to show compliance with the act, all this will somehow have to be tracked and recorded.

In other words, if an allegation is made that you sent spam, you will have to prove that it was not spam — which could be by showing an exemption under the act, or showing that permission was obtained that follows the requirements of the act.

Certain commercial electronic messages are simply prohibited as spam. Commercial electronic messages that are allowed must contain specified sender information, and an unsubscribe mechanism. That mechanism of course has to be created and tied in to a system that tracks consents and exceptions.

Consents that are in place now and adequate under privacy legislation will not be adequate consent under the act unless the requirements of the act were followed when it was obtained. So we can expect a deluge of e-mails requesting consent to send things that we already thought we had consented to.

Penalties for non-compliance of the act are significant, so ignoring the act is not an option. Remedies include fines of up to $1 million for individuals,

$10 million for others, and private rights of action. Private rights of action allow lawsuits by individuals, including class actions.

Some things are “reviewable conduct,” meaning they’re subject to the investigatory and order-making powers of the privacy or competition commissioners.

Directors and officers can be personally liable if they authorized or acquiesced in the offence. Employers are vicariously liable for actions of employees acting within their authority. It is not certain when the act will come into force — probably no sooner than the second half of the year.

For more detailed information on the act, see a series of articles that I will be posting shortly on my blog at http://elegal.ca/ .

www.harrisonpensa.com/lawyers/david-canton

2013 issues: Three-dimensional printers may lead to intellectual property conundrums

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For the London Free Press – January 7, 2013 – Read this on Canoe

Here are some things worth keeping an eye on in 2013:

The Canadian Anti-Spam legislation was passed a couple of years ago, but is not yet in force. Look for it to become law sometime in 2013. We are still waiting for some key regulations under the act to be published before that can happen.

This legislation is complex, and because of its extremely broad definition of spam, could become a compliance nightmare for businesses and charities. Penalties for violating the act are severe, so it is not something that can be ignored.

Look for Kickstarter or a similar service to come to Canada. Kickstarter is a site where people provide money — sometimes as a pure donation, sometimes on the promise of receiving something tangible — for people raising money for specific projects.

Cloud file storage services like Dropbox, Google Drive and Microsoft Skydrive will become mainstream for business use. Consumers have been using these for some time, but look for business to start using them more for file sharing. These services are coming of age, and are becoming more trusted.

Convergence is a buzzword that has been around for a long time. It essentially means the convergence of multiple types of communication onto one platform. For example, in addition to e-mail, one might receive things like voice-mail and social media feeds on their e-mail platform.

This might be the year when this becomes more common. Many people already use services such as Flipboard or Hootsuite that bring various types of social media and RSS feeds onto one screen. So one can, for example, read and send from Twitter, Facebook, Linkedin and blogs, all in one place.

Various forms of communication are blending and merging — and allowing us to receive messages from various tools all at once in one place. Those messages could be e-mails, texts, tweets, voice-mails or videos. The various platforms are becoming more secure, and advances in smartphones and LTE speeds are making it easier than ever to consume all this wherever we are.

Though the new Windows 8 products may be off to a slow start, the Windows 8 approach to device and communication integration is where we are headed on convergence.

Expect to hear more about the “Internet of things.” This concept has been bandied about for a while, and now seems to be in the early adopter hobbyist stage. It refers to objects being connected to the Internet — such as appliances, furnaces and lights. Sensor technology and basic computer circuitry to connect them to the net is becoming inexpensive. This is also leading to things such as medical monitoring and diagnostic tools that work with smartphones. These advances will result in some interesting new tools.

Another technology in the early-­adopter stage is three-dimensional printing. 3D printers print objects, not just text on a page. This is another technology worth watching, which may lead to some interesting intellectual property conundrums.

http://harrisonpensa.com/lawyers/david-canton/

More anti-spam regulations on January 5

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Todays’ Slaw post:

The Canadian anti-spam act was passed in December of 2010 – but is still not in force.  Current speculation is that it will be in force later in 2013 – or perhaps not even until 2014.

The act contemplated 2 sets of regulations that are crucial for how the act works in practice.  Regulations from the CRTC are final.  We have been waiting for regulations from Industry Canada. 

Industry Canada announced on Dec 24 that its regulations will be published in the Canada Gazette on January 5th 2013 for a 30 day consultation period.

Stay tuned for more detail.

http://harrisonpensa.com/lawyers/david-canton/

Lawyers and Orchestra London team up for the fifth annual evening of dramatic readings of A Christmas Carol in a fundraiser for the Unity Project

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For the London Free Press – December 24, 2012

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Charles Dickens’ stories and characters live in our hearts; none more so than his iconic A Christmas Carol. Who can forget the sinfully greedy Ebenezer Scrooge and his subsequent redemption at the hands of the Ghosts of Christmas Past, Present and Yet to Come?

Yet something people might not know is that Dickens himself had a large heart, and often used profits from his own dramatic readings of this holiday classic to fund charities focusing on hospitals and education for the poor.

A Christmas Carol, written in 1843 and Dickens’ personal favourite, reflected the challenging conditions of the “Hungry Forties” (that would be the 1840s), and is credited with bringing back Christmas cheer to Victorian England.

On Dec. 12, Claude Pensa and a team of London’s leading legal minds teamed up with Orchestra London for the fifth straight year to carry on Dickens’ generous charitable traditions in support of the Unity Project, an organization that fights homelessness in London.

Jamie Caskey of Siskinds, Maia Bent of Lerners, John Graham of Foster Townsend Graham, Vicki Edgar of Cohen Highley and Claude Pensa and Lorrie Por of Harrison Pensa gave dramatic readings of the five “staves” or chapters, of A Christmas Carol.

The readings were based on an abbreviated version of the novel Dickens used in his own dramatic live readings. The interludes were filled with the music of Orchestra London, conducted by Alain Trudel.

The readers were given dramatic coaching to ensure the story leapt off the pages and came to life in the minds of the audience. At the end, the audience joined the narrators in a holiday sing-along of favourite Christmas songs.

Attendees were invited to donate what they could to attend the show. The 832 audience members generously donated $6,995 at the door. Combined with sponsorships, this year’s show grossed $48,655. Ten of the audience members were residents of the Unity Project.

The Unity Project is a London charity that provides emergency shelter and transitional housing, and supports self-help where people are struggling to escape or avoid homelessness.

The narrators of the Christmas Carol were given a tour of the Unity Project prior to the reading. Lorrie Por from Harrison Pensa said she was “humbled by the experience of touring the Unity Project and meeting the volunteers that make a difference in people’s lives every single day.’’

She also gained a better appreciation of the challenges faced by those in desperate need on a day-to-day basis.

Don and Joan Smith were the presenting sponsors and many of London’s local law firms — including Harrison Pensa — served as star sponsors of the show.

David Canton is a business lawyer and trade-mark agent with a technology focus at Harrison Pensa LLP. This article, written with the assistance of Lauren McLean, contains general comments only, not legal advice.

www.harrisonpensa.com/lawyers/david-canton

New law accepts everyday activities

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For the London Free Press – November 26, 2012

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You’re no longer breaking the law when you use your PVR to record your favourite TV show for later viewing.

Teachers are no longer infringing copyright when they print publicly available materials from the Internet to share with students.

Comedians are no longer violating the Copyright Act when they create a parody of a topical song or movie.

The much-anticipated, long-awaited Bill C-11 — Copyright Modernization Act — has finally become law in Canada. Though some aspects of the new act are controversial, the changes are for the most part welcome and long overdue.

The new act addresses everyday digital activities and legitimizes many of them under our copyright laws. The legislation aims to strike a balance between the interests of the creators of copyright and the rights of users.

Copyright protection is vital to the promotion of innovation. But at the same time, there are other interests best served by allowing users access to copyrighted material.

Chief among the important changes to Canada’s copyright regime is the expanded definition of “fair dealing.” Previously, the exception for “fair dealing” was limited to research, private study, news reporting, criticism and review. Now, fair dealing also includes reproduction of copyrighted materials for education, parody and satire purposes.

The new law also distinguishes between commercial and non-commercial copyright infringement. Statutory damages for non-commercial infringement are now smaller than for commercial infringement — capped at $20,000 for each infringed work for commercial purposes and $5,000 for all infringed works for non-­commercial purposes.

Of course copyright owners can still sue for actual damages that they can prove, but in many non-commercial situations, it may be hard to show actual damages exceeding the purchase price of the work.

Some of the controversy the bill generated has been the result of the digital lock provisions. It is illegal to break digital locks in most situations. A digital lock is put on content by the provider to prevent copying. It might, for example, stop you from copying a DVD or CD. That is despite the fact that the law gives consumers the explicit right to do things such as format shift a CD to a memory stick to play it on another device owned by the consumer. The digital lock rule essentially allows the publisher to take away some rights that the legislation grants.

All of the consumer-oriented provisions have come into force. These include the expansion of the fair dealing concept, the limit to statutory damages for non-commercial infringement and the exception for publicly available electronic materials used by educational institutions in non-commercial settings.

Provisions still to come include rules requiring Internet service provider to forward notices to subscribers accused of violating copyright. The ISP also has to maintain a detailed record of the notification in case court proceedings follow.

www.harrisonpensa.com/lawyers/david-canton

People are more likely to install apps that respect their privacy

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For the London Free Press – November 12, 2012

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“Big Brother” brings to mind government surveillance over our daily lives. But in the era of smartphones and almost unlimited consumer connectivity, it is the mobile phone app industry that has the potential to follow our every move.

Apps can track our personalities and consumer preferences based on data collected on our mobile devices. The use and sharing of personal information by mobile apps has been controversial and the subject of privacy concerns by various privacy commissioners as well as irate users.

The privacy commissioners of Canada, Alberta and British Columbia recently issued a guide called Seizing Opportunity: Good Privacy Practices for Developing Mobile Apps to help mobile app developers include user privacy as part of their design process.

Privacy law compliance is a good selling-point for app developers. A 2012 survey mentioned in the guide found that 57% of app users in the United States uninstalled an app or declined to install an app in the first place over privacy concerns. Canadians are equally unwilling to give up personal information. In a 2011 survey, only 22% of smartphone users said they would give an app developer demographic or geographic information about themselves in exchange for a free app.

The collection of personal information from mobile phones has become a major concern among Canadians. In the same 2011 survey, nine out of 10 Canadians were concerned with businesses requesting too much personal information, the information’s security and the possibility that the information was being sold to other organizations.

If app developers can find efficient, user-friendly ways to comply with privacy laws, and communicate to users that privacy and privacy laws are being respected, it will benefit both the developer and the consumer. Evidence indicates that people are more likely to install apps that respect their privacy. Users benefit because they have the comfort of knowing that their personal information is secure. App developers benefit because they are selling a product users trust.

The guide points out transparency is key to privacy law compliance. It is also a way of gaining trust from users. Transparency involves telling users before they download the app what information will be collected and why, where the information will be stored, and justifying why information is collected. If an app developer does not need information, it should not be collected.

Mobile app developers are not solely to blame for the increasing privacy concerns surrounding information gathering on mobile devices. The small user-interface makes it difficult to design apps that convey the user’s privacy options in a user-friendly way.

In other words, few people read the tiny print on a tiny screen advising about privacy options. The guide suggests layering information, so that the important details are upfront, with links to details for those that seek more information. The guide also suggests creating a tool within the app that allows the user to customize their privacy settings.

Getting privacy right for any new technology, not just mobile, can be a challenge. The most effective approach is to think about it in the design stage.

http://harrisonpensa.com/lawyers/david-canton/