casl and freedom of expression - final lsuc conference slides

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  • CASL and Freedom of Expression The Writing Is on the Wall 17th Biennial National Conference Communications Law and Policy

    Daniel G. C. GloverPartnerDirect Line: (416) 601-8069E-Mail: dglover@mccarthy.ca May 1, 2014

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    McCarthy Ttrault S.E.N.C.R.L., s.r.l. / mccarthy.ca 11756862

    It is part of an international movement towards giving individuals better control over their personal informationSuch control is intimately connected to individual autonomy, dignity and privacyCASL is intended to protect consumers and businesses against fraud and harassment in the digital marketplaceNo one disagrees with theseobjectives. CASL HAS SALUTARY OBJECTIVES*

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    McCarthy Ttrault S.E.N.C.R.L., s.r.l. / mccarthy.ca 11756862

    But Is CASL Sufficiently Focused to Survive a Charter Challenge?*

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    McCarthy Ttrault S.E.N.C.R.L., s.r.l. / mccarthy.ca 11756862

    Rational Connection: Measures adopted must be carefully designed to achieve the objective. They must not be arbitrary, unfair or based on irrational considerations. Minimal Impairment: The means should impair as little as possible the right or freedom. Proportionality: There must be a proportionality between the effects of the measures and the objective which has been identified as of sufficient importance.

    Onus rests on the party seeking to uphold the limitation on a Charter right.A Refresher on the Oakes Test*

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    McCarthy Ttrault S.E.N.C.R.L., s.r.l. / mccarthy.ca 11756862

    First head-on clash between Charter right of freedom of expression and quasi-constitutional right of privacyBoth sides filmed people crossing a picket line in West Edmonton MallUnion threatened to post photos on CasinoScabs.ca, but Alta Privacy Commissioner prohibited usePIPA struck down at Alta CA and SCC on s. 2(b) expression groundsAlberta v. United Food, 2013 SCC 62*

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    McCarthy Ttrault S.E.N.C.R.L., s.r.l. / mccarthy.ca 11756862

    It covers all PI of any kind, and provides no functional definition of that term. TheActcontains no general exception for info that is personal, but not at all private. The exception relating publicly available information is artificially narrow.There is no general exemption for information used for free expression.There is no exemption allowing organizations to reasonably use personal information that is reasonably required in the legitimate operation of their businesses.

    Why Did Alta. CA Strike Down PIPA?*

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    McCarthy Ttrault S.E.N.C.R.L., s.r.l. / mccarthy.ca 11756862

    PIPAs objective is increasingly significant in the modern context... However these broad restrictions are disproportionate to the benefits the legislation seeks to promote. In other words, the Charter infringement is too high a price to pay for the benefit of the law [SCC, para. 20]SCC: PIPA Fails the Oakes Test*

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    McCarthy Ttrault S.E.N.C.R.L., s.r.l. / mccarthy.ca 11756862

    What is of the utmost significance is that PIPA prohibits the collection, use, or disclosure of personal information for many legitimate, expressive purposes... These purposes include ensuring the safety of union members, attempting to persuade the public not to do business with an employer and bringing debate on the labour conditions with an employer into the public realm. These objectives are at the core of protected expressive activity. [para. 26]SCC: PIPA Fails the Oakes Test*

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    McCarthy Ttrault S.E.N.C.R.L., s.r.l. / mccarthy.ca 11756862

    An analysis of the constitutionality of the statute calls for an application of the Oakes test. On the other hand, it could be argued that the statute is not unconstitutional per se, but that the way it was brought to bear in this particular decision was inconsistent with Charter values. From that perspective, a Dor analysis is called for. Even if the statute is valid, Dor confirms that the particular decision must be consistent with Charter values. United Food (2012 ABCA 130)CASL could fall short in an absolute sense, or in the way it is appliedDoes the admin decision interfere with the Charter guarantee no more than is necessary given the statutory objectives? [Dore, 2012 SCC 12]

    A Primer on the Charter and Admin Law*

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    McCarthy Ttrault S.E.N.C.R.L., s.r.l. / mccarthy.ca 11756862

    Over and above its intrinsic value as expression, commercial expression which, as has been pointed out, protects listeners as well as speakers plays a significant role in enabling individuals to make informed economic choices, an important aspect of individual selffulfillment and personal autonomy.Ford v. Quebec, [1988] 2 S.C.R. 712(also see Guignard SCC 2002)The Value of Commercial Expression*

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    McCarthy Ttrault S.E.N.C.R.L., s.r.l. / mccarthy.ca 11756862

    The Breadth of CASL*

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    McCarthy Ttrault S.E.N.C.R.L., s.r.l. / mccarthy.ca 11756862

    CASL Sweeps Up Even Incidental Commercial Messages

    A commercial electronic message is an electronic message that, having regard to the content of the message, the hyperlinks in the message to content on a website or other database, or the contact information contained in the message, it would be reasonable to conclude has as its purpose, or one of its purposes, to encourage participation in a commercial activityOnly one purpose, even through use of hyperlinks, logos, contact information, could be seen to encourage participation in a commercial activity and thus violate CASLAccessory liability for aiding or procuring violation means that others speech can lead to liability.Private right of action with multimillion dollar damages causes chill. (Cant rely on the restraint of the regulator!)

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    McCarthy Ttrault S.E.N.C.R.L., s.r.l. / mccarthy.ca 11756862

    The Problem of Legacy Consents *

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    McCarthy Ttrault S.E.N.C.R.L., s.r.l. / mccarthy.ca 11756862

    PIPEDA Consents Not GrandfatheredBlacks Law Dictionary (Express Consent): Consent that is clearly and unmistakably stated butConsents under PIPEDA to send CEMs not necessarily valid for the purposes of CASLCASL creates a harsher consent regime than PIPEDA since implied consents are a list of closed categoriesConsents cant be inferred by conduct as in Australia or New ZealandPre-checked boxes considered anathema by the CRTC Consents cant be bundled into a licence agreement under CRTC Interpretive Guidelines, para. 16

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    McCarthy Ttrault S.E.N.C.R.L., s.r.l. / mccarthy.ca 11756862

    The Underinclusive EBR*The existing business relationship basis for implied consent has a disproportionate effect on manufacturers because it is impossible to ascertain who on a mailing list qualifies because goods are sold through intermediaries.

    As a result, and because re-opt-ins have a low response rate, mailing lists are being purged for fear of liability.

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    McCarthy Ttrault S.E.N.C.R.L., s.r.l. / mccarthy.ca 11756862

    CASL = MORE THAN MALWARE/SPYWAREApplies to computer programs as meaning data representing instructions or statements that, when executed in a computer system, causes the computer system to perform a function. Broad definition does not regulate invasive computer programs, but all computer programsParliament could have restricted operation to invasive function programs (described in s. 10(5) of CASL)Contrast to Irwin Toy (targeted limitation to narrow class of actors)First act of its kind in the world*

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    McCarthy Ttrault S.E.N.C.R.L., s.r.l. / mccarthy.ca 11756862

    CHILL UNDER CASL9. It is prohibited to aid, induce, procure or cause to be procured the doing of any act contrary to any of sections 6 to 8.*

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    McCarthy Ttrault S.E.N.C.R.L., s.r.l. / mccarthy.ca 11756862

    So Is the Writing on the Wall?*

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    McCarthy Ttrault S.E.N.C.R.L., s.r.l. / mccarthy.ca 11756862

    VANCOUVERSuite 1300, 777 Dunsmuir StreetP.O. Box 10424, Pacific CentreVancouver BC V7Y 1K2Tel: 604-643-7100 Fax: 604-643-7900 Toll-Free: 1-877-244-7711

    CALGARYSuite 4000, 421 7th Avenue SWCalgary AB T2P 4K9Tel: 403-260-3500 Fax: 403-260-3501 Toll-Free: 1-877-244-7711

    TORONTOBox 48, Suite 5300Toronto Dominion Bank TowerToronto ON M5K 1E6Tel: 416-362-1812 Fax: 416-868-0673 Toll-Free: 1-877-244-7711MONTRALSuite 25001000 De La Gauchetire Street WestMontral QC H3B 0A2Tel: 514-397-4100 Fax: 514-875-6246 Toll-Free: 1-877-244-7711

    QUBECLe Complexe St-Amable1150, rue de Claire-Fontaine, 7e tageQubec QC G1R 5G4Tel: 418-521-3000 Fax: 418-521-3099 Toll-Free: 1-877-244-7711

    UNITED KINGDOM & EUROPE125 Old Broad Street, 26th FloorLondon EC2N 1ARUNITED KINGDOMTel: +44 (0)20 7786 5700 Fax: +44 (0)20 7786 5702*

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