Law Bytes

The Standing Committee on Canadian Heritage last week started what it is calling a pre-study on Bill C-10, the Broadcasting Act reform bill. The hearings raises some significant procedural concerns given that the bill has not yet passed second reading so the committee is technically conducting a study about the bill, rather than studying the bill itself. Moreover, committee members have indicated that they have already been invited to provide potential amendment to a bill that hasn’t even made it out to committee, much less been the subject of any study. Despite those qualms, I was pleased to be invited to appear before the committee and discuss some of the concerns that I’ve identified with the bill. This week’s podcast features my opening statement and the full exchanges that I had with Conservative MP Keven Waugh and Liberal MP Marcie Ian. The audio isn’t ideal, but I hope that the recordings give a sense of both the policy concerns with the bill and the kinds of questions being asked. The podcast can be d

Digital tax policy has emerged as major issue around the world. Canada is no exception. Late last year, the Canadian government announced plans to act on all three fronts: Bill C-10 seeks to address mandated Cancon payment and Finance Minster Chrystia Freeland has promised digital sales taxes by July and what sounds like a digital services tax in 2022. What is a DST and how might Canada’s digital tax plans play out on the international front?  I spoke with Georgetown University professor Itai Grinberg, a leading expert on cross-border taxation and digital tax issues on December 15, 2020, shortly after the government’s announcement. He joined the Law Bytes podcast to talk about the longstanding approach to multi-national tax policy and the emerging challenges that come from the digital economy. The podcast can be downloaded here, accessed on YouTube, and is embedded below. Subscribe to the podcast via Apple Podcast, Google Play, Spotify or the RSS feed. Updates on the podcast on Twitter at @Lawbytespod. Show

The Law Bytes podcast took a breather over the holidays and into early January, but there seemingly is no break for digital policy issues. Over the past few weeks, Internet platforms have found themselves squarely in the public eye as company after company – from Shopify to Twitter to Facebook de-platformed former US President Donald Trump in response to the events in Washington earlier this month. Dr. Heidi Tworek of the University of British Columbia is one of Canada’s most prolific thinkers on Internet platform policies. She joins the podcast for a conversation about the role and responsibilities of Internet platforms, proposals for payments in the news sector, and insights what governments should be doing about better communicating with the public about the COVID-19 global pandemic. The podcast can be downloaded here, accessed on YouTube, and is embedded below. Subscribe to the podcast via Apple Podcast, Google Play, Spotify or the RSS feed. Updates on the podcast on Twitter at @Lawbytespod. Show Notes:

Canada is currently considering major reforms to how it regulates Internet services. Canadian Heritage Minister Steven Guilbeault’s Bill C-10 would dramatically reshape the Broadcasting Act by regulating foreign Internet sites and services with the prospect of mandated registration, payments to support Canadian content, confidential data disclosures, and discoverability requirements. The bill would also remove policies supporting Canadian ownership of the broadcasting system and reduce expectations about Canadian participation in film and television productions. This week’s Law Bytes podcast takes a closer look at the implications of the bill, examining key concerns discussed in my ongoing Broadcasting Act blunder blog series. The podcast can be downloaded here, accessed on YouTube, and is embedded below. Subscribe to the podcast via Apple Podcast, Google Play, Spotify or the RSS feed. Updates on the podcast on Twitter at @Lawbytespod. Show Notes: Broadcasting Act Blunder series Day 1: Why there is no Canadi

Canada’s new privacy bill is only a couple of weeks old but it is already generating debate in the House of Commons and careful study and commentary from the privacy community. As the biggest overhaul of Canada’s privacy rules in two decades, the bill will undoubtedly be the subject of deep analysis and lengthy committee review, likely to start early in 2021. Last week’s Law Bytes podcast featured Navdeep Bains, the Innovation, Science and Industry Minister, who is responsible for the bill. This week, Professor Emily Laidlaw of the University of Calgary, who holds the Canada Research Chair in Cybersecurity Law, joins the podcast with her take on the good, the bad, and the missed opportunities in Bill C-11. The podcast can be downloaded here, accessed on YouTube, and is embedded below. Subscribe to the podcast via Apple Podcast, Google Play, Spotify, Youtube or the RSS feed. Updates on the podcast on Twitter at @Lawbytespod.   Show Notes: Laidlaw, AB Lawg: Canada’s Proposed New Consumer Privacy Protection Act

It has taken many years, but Canada finally appears ready to engage in an overhaul of its outdated private sector privacy law. Earlier this month, the Innovation, Science and Industry Minister Navdeep Bains introduced Bill C-11, which, if enacted, would fundamentally re-write Canada’s privacy rules. The government intends to repeal PIPEDA and replace it with the Consumer Privacy Protection Act, which features a new privacy tribunal, tough penalties for non-compliance, and new provisions on issues such as data portability and data de-identification. To discuss the thinking behind the bill and the government’s privacy plans for privacy, Minister Bains this week joins the Law Bytes podcast as he identifies some the benefits of the bill, clarifies the reasoning behind some of the more controversial policy decisions, and provides a roadmap for what comes next. The podcast can be downloaded here, streamed on Youtube, and is embedded below. Subscribe to the podcast via Apple Podcast, Google Play, Spotify or the RSS

News Media Canada, the lobby group representing the major newspaper publishers in Canada recently launched a new campaign that calls for the creation of a government digital media regulatory agency that would have the power to establish mandated payments by Internet companies merely for linking to news articles. But not everyone in the sector – or even within News Media Canada – agrees with the position. Jeff Elgie is the CEO and majority shareholder of Village Media, a digital-only media organization that operates local news and community websites throughout Ontario. He joins the Law Bytes podcast this week to talk about operating local news sites in the current environment, why he welcomes referral traffic from companies like Facebook and Google, and why though he respects News Media Canada, he hopes that a new association will emerge that better represents the diversity of news media in Canada. The podcast can be downloaded here and is embedded below. Subscribe to the podcast via Apple Podcast, Google Play

Last week, Canadian Heritage Minister Steven Guilbeault introduced Bill C-10, legislation that would significantly reform Canada’s Broadcasting Act. A foundational part of what he has called a “get money from web giants” legislative strategy, the bill grants new powers to the CRTC to regulate online streaming services. Bram Abramson is one of Canada’s leading communications law lawyers and managing director of a new digital risk and rights strategy firm called 32M. Bram acted as an outside consultant on telecom regulation for the recent Broadcasting and Telecommunications Legislative Review panel – often called the Yale Report –  but he joins the podcast to talk about the past, present and future of broadcast regulation, in particular what Bill C-10 could mean for the regulation of online streaming services. The podcast can be downloaded here and is embedded below. Subscribe to the podcast via Apple Podcast, Google Play, Spotify or the RSS feed. Updates on the podcast on Twitter at @Lawbytespod. Credits: CPA

The world will be focused on the United States this week as the U.S. Presidential election is slated to take place on Tuesday, November 3rd. The role of social media has been in the spotlight in the US for months with calls for regulation, a range of responses from the major companies, and ongoing concerns about the immediate aftermath of the election and fears that their platforms could be weaponized if the winner is in dispute. Canada had its own national election one year ago and enacted a range of reforms designed to address some of these issues. Mike Pal is a colleague at the University of Ottawa where he specializes in election law. He joins the Law Bytes podcast to discuss the Canadian experience including what changes were made, whether they were effective, what more can be done, and what Canada might teach others about confronting the challenges that lie at the intersection between elections and the Internet. The podcast can be downloaded here and is embedded below. Subscribe to the podcast via Apple

Facial recognition technologies seem likely to become an increasingly commonplace part of travel with scans for boarding passes, security clearance, customs review, and baggage pickup just some of the spots where your face could become the source of screening. Tamir Israel, staff lawyer at CIPPIC, the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic at the University of Ottawa, recently completed a major study on the use of facial recognition technologies at the border. He joins me on the LawBytes podcast to discuss the current use of the technologies, how they are likely to become even more ubiquitous in the future, and the state of Canadian law to ensure appropriate safeguards and privacy protections. The podcast can be downloaded here and is embedded below. Subscribe to the podcast via Apple Podcast, Google Play, Spotify or the RSS feed. Updates on the podcast on Twitter at @Lawbytespod. Show Notes: Facial Recognition at a Crossroads: Transformation at our Borders and Beyond Credits:

As the second wave of COVID-19 seems to have arrived in many countries, the importance of measures such as social distancing, masks, testing, and tracing takes on increased importance. In Canada, the COVID Alert App is another important part of that toolkit. The app has been downloaded more than 4.5 million times and has been used to alert users to a potential exposure to the virus nearly 1,700 times. Despite the potential benefits, there remain many skeptics. Ann Cavoukian, a three-time Ontario privacy commissioner and one of Canada’s best known privacy experts, joins the LawBytes podcast this week to talk about the exposure notification and how it addresses potential privacy concerns. The podcast can be downloaded here and is embedded below. Subscribe to the podcast via Apple Podcast, Google Play, Spotify or the RSS feed. Updates on the podcast on Twitter at @Lawbytespod. Show Notes: COVID Alert App Credits: CityTV News, Why Aren’t Canadians Downloading the COVID Alert App?

One year ago this week, Ian Kerr, a friend, colleague, teacher, and prescient scholar in the world of law, technology, and ethics, passed away. Ian’s loss sparked an outpouring of stories of a truly exceptional person whose friendship, mentorship, and “en-Kerr-agement”, left a remarkable legacy with so many citing his impact as a defining moment in their lives and careers. Given the impact Ian had on the privacy world, the IAPP launched an annual lecture in his honour at the IAPP Canada Privacy Symposium. While this year’s symposium was cancelled, the Kerr Memorial Lecture went ahead with an online streamed lecture. I was honoured to deliver the inaugural lecture, titled Privacy and Zambonis in the Age of COVID-19. This week’s podcast features that lecture, which I think is most notable for exploring how Ian’s scholarship remains so fresh and relevant today with much to teach about the challenges of privacy in our current world. The podcast can be downloaded here and is embedded below. Subscribe to the podcas

TikTok has found itself at the centre of a global geo-political fight between the United States and China. U.S. President Donald Trump, citing privacy, censorship, and national security concerns, first declared his plan to ban the app from the country and later followed up with an Executive Order prohibiting commercial activities with TikTok after a 45 day implementation period. What does the battle over TikTok and other Chinese-owned apps mean for their users and for the future of an open and accessible Internet? Anupam Chander, a law professor at Georgetown University and leading expert on the global regulation of new technologies, joins the podcast to explain the recent developments, unpack the legal issues, and assess the broader geo-political implications. The podcast can be downloaded here and is embedded below. Subscribe to the podcast via Apple Podcast, Google Play, Spotify or the RSS feed. Updates on the podcast on Twitter at @Lawbytespod. Show Notes: Chander, Trump Grants TikTok a Reprieve, But Hi

The Canadian government released its COVID Alert, its COVID-19 exposure notification app, earlier this month starting first with a roll-out in Ontario. I’ve written how I’ve made the decision to install it, noting that the voluntary app does not collect personal information nor provide the government (or anyone else) with location information. The app underwent two privacy reviews, engaging both the federal privacy commissioner and the Ontario information and privacy commissioner. Patricia Kosseim, the newly appointed Ontario privacy commissioner, had only been on the job for a few hours before she was dealing with the app that was bound to attract public attention. Commissioner Kosseim joins me on the podcast to discuss the app, her review, the interaction between different governments and commissioners, and why she installed the app the day it was released. The podcast can be downloaded here and is embedded below. Subscribe to the podcast via Apple Podcast, Google Play, Spotify or the RSS feed. Updates on t

The Schrems II decision, a recent European Court of Justice ruling that declares the Privacy Shield program that facilitates data transfers between the EU and the United States invalid, has major implications for modern commercial data related activities such as cross-border data transfers. The decision will reverberate in countries around the world, including Canada. For example, Canadian privacy law was found many years ago to meet the EU’s adequacy standard, but the Schrems II may call that into question. Colin Bennett is a political science professor at the University of Victoria and one of Canada’s leading privacy experts. He has written multiple books on privacy and surveillance and focuses on the development and implementation of privacy protection policies at the domestic and international levels. He joins the podcast to discuss the Schrems II decision and what it means for global data transfers and the future of Canada’s privacy law framework. The podcast can be downloaded here and is embedded below.

As the broad availability of genetic testing has mushroomed over the past two decades, privacy and potential discrimination concerns associated with testing results has increased. Until recently, Canada lagged behind other countries in this regard with no specific national legislation. That changed in 2017 with the enactment of the Genetic Non-Discrimination Act. The Act was quickly challenged on constitutional grounds, but earlier this month a divided Supreme Court of Canada upheld its validity. The law underwent a remarkable parliamentary journey featuring opposition from successive governments, lobbying against the bill by the insurance industry, passage in the House of Commons despite objections from then-Justice Minister Jody Wilson-Raybould, and a court challenge in which the government supported the effort to declare the law invalid. Senator James Cowan, who was the lead proponent of the legislation, joins me on the podcast to discuss what prompted him to take on the  issue and the unlikely path of Can

From the very outset of the COVID-19 outbreak, public health officials have identified the potential of contact tracing applications to both assist in conventional contact tracing activities and to warn individuals that they may have been in close proximity to someone who tested positive for the virus. The apps have unsurprisingly proven controversial, with some doubting their effectiveness and others concerned about the broader privacy and security implications. The Government of Alberta was first off the mark with its ABTraceTogether app that launched in May 2020. Alberta Information and Privacy Commissioner Jill Clayton recently completed her review of the application with an extensive investigation into its privacy implications that included an examination of the technical details, how the app functions, the role of third parties, and access to the data by contact tracers and other officials. Commissioner Clayton joins me on the podcast to discuss her report, the positive aspects of the app implementation

South Africa spent years embroiled in a high profile effort to update its copyright law responding to concerns from creators, the education community, and the visually impaired that the longstanding laws did not serve the national interest and were harming creativity and access to knowledge. Its Parliament ultimately passed progressive reforms in 2019, but the bill languished on the desk of President Cyril Ramaphosa, who faced enormous trade pressures from the United States and European Union to not sign the bill and stop it from becoming law. Last month, he seemingly caved to the pressure, citing constitutional concerns in sending it back to the Parliament. Ben Cashdan is a South African documentary film maker and television producer who was active during the copyright reform process. He worked with Recreate ZA, which brought together a broad coalition of creatives, to advocate for both the interests of owning copyright in their own works, and in fairly using copyrighted materials in the creation of new work

The Supreme Court of Canada recently released its much anticipated Uber Technologies v. Heller decision, a landmark ruling with significant implications for the validity of online contracts and for employment relations in the gig economy. The court rejected an arbitration clause in an Uber contract with its drivers, finding the clause unconscionable. The decision unsurprisingly quickly caught the attention of many in the legal, technology, business, and consumer advocacy communities. Professor Marina Pavlovic is a friend and colleague at the University of Ottawa, who appeared before the Supreme Court representing the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic as an intervener in the case. She joined me on the podcast to discuss the decision and to explain why she believes it is an earth shattering ruling for online contracts in Canada. The podcast can be downloaded here and is embedded below. Subscribe to the podcast via Apple Podcast, Google Play, Spotify or the RSS feed. Updates o

Canadian Heritage Minister Steven Guilbeault recently suggested that the government’s support for news media should be replaced by copyright rules that would open the door to payments from internet companies such as Google and Facebook. Guilbeault indicated that a legislative package was being prepared for the fall that would include a press publishers’ right is that is commonly referred to as an internet link tax. Julia Reda is a former Member of the European Parliament who for several years was the most active and visible politician in Europe when it came to copyright reform. That multi-year debate ultimately led to the adoption of a link tax and upload filters with a European directive. She joins me on the podcast to talk about that experience, why she believes a link tax harms freedom of expression and diversity of media, and what lessons Canada should draw from the European experience. The podcast can be downloaded here and is embedded below. Subscribe to the podcast via Apple Podcast, Google Play, Spoti