Analysis Shows European Commission's 'Improved' Corporate Sovereignty Model Would Actually Make Things Much Worse

from the institutionalized-regulatory-chill dept

Last year, the controversy around corporate sovereignty was such that the European Commission felt obliged to slam the brakes on this particular part of the TAFTA/TTIP negotiations in order to try to defuse the situation. The ostensible reason for that unexpected pause was to hold a public consultation on the "investor-state dispute settlement" (ISDS) mechanism. It turned out to be of a very limited kind. Rather than asking whether people wanted corporate tribunals passing judgment on their laws and regulations, the European Commission instead presented the ISDS chapter of another agreement, that with Canada, and posed some rather technical questions about the subtle changes it incorporated.

The Comprehensive Economic and Trade Agreement (CETA) is nominally finished, and is currently undergoing what is known as "legal scrubbing", during which it is checked and polished for final ratification by Canada and the EU, although that's looking much more problematic now than it did a year ago. In the consultation, CETA's ISDS chapter was offered as a kind of template for TAFTA/TTIP. The Commission's argument was that it incorporated many improvements over traditional corporate sovereignty chapters -- which even the EU admitted were flawed -- and could be tweaked further to produce an even better solution for the US-EU negotiations.

Techdirt has already written about one detailed analysis of the claimed improvements in CETA's ISDS that found them seriously wanting. Confirming that view is a new paper from Gus Van Harten, who is Associate Professor of Law at York University in Toronto, Canada. He has taken advantage of the fact that we now have two recent EU free trade agreements with corporate sovereignty chapters: the one with Canada, plus a less well-known deal with Singapore. Van Harten's paper looks at both of them in order to explore to what extent the European Commission's new model for ISDS represents an advance over previous versions, and is therefore something that might usefully form the basis for a possible corporate sovereignty chapter in TTIP. Here's his concluding summary:

The CETA and [EU-Singapore] FTA demonstrate the Commission's willingness to accept ISDS -- based on the model long pushed by Western European countries for developing and transition countries -- that is flawed due to its lack of independence, fairness, and balance. The Commission's approach to ISDS, as represented by the CETA and FTA, does not ensure basic safeguards of judicial independence and procedural fairness. It does not affirm clearly the state's right to regulate. It does not introduce actionable responsibilities for foreign investors or even require foreign investors to resort to domestic courts unless they have been shown not to offer justice. The only notable improvement in the CETA and FTA approach to ISDS, compared to the historical Western European model, is its greater provision for openness.

…

By including ISDS in the CETA and FTA, as forerunners of a TTIP, the Commission would make the problems of ISDS much worse. The Commission aims to expand and lock in a deeply flawed system of dispute resolution -- premised on the special privileging and subsidizing of large companies and very wealthy individuals, with lucrative returns also for ISDS lawyers and arbitrators -- so that it covers most of the world economy.

Although that is pretty unequivocal, it's worth reading the whole paper to understand why Van Harten is so dismissive. It contains many insights along the way, including the following astonishing fact:

The CETA's provision on the arbitrators' power to award damages to foreign investors includes a clause that I have not seen in any investment treaty. The clause says that, in calculating monetary damages, the arbitrators shall reduce the damages to account for "any... repeal or modification of the measure". Thus, the CETA appears to establish an incentive for states to change their decisions in order to appease a foreign investor (who has brought an ISDS claim) as a means to limit the state's exposure to potentially massive liability at the hands of the arbitrators. Put differently, this clause in the CETA appears to institutionalize the ISDS dynamic of "regulatory chill".

So much for the idea that corporate sovereignty "does not and cannot require countries to change any law or regulation": not only does the CETA text admit it can happen, it even provides a strong incentive to do so.

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Filed Under: canada, ceta, corporate sovereignty, eu, isds, tafta, tpp, ttip

Canada Passes 'Anti-Terror' Spy Bill, Taking Away Civil Liberties

from the because-fear dept

While the US is actually showing signs of (marginally) limiting the NSA's surveillance capabilities, Canada has gone in the other direction. A month ago we mentioned the push on bill C-51 and it has now passed the Senate after passing the House of Commons a few weeks ago and is now the law in Canada. It's a broad snooping charter for the government to have much greater surveillance powers and take away civil liberties for Canadians, all in the name of protecting them from terrorists. This follows on France passing similar laws and the UK pushing for something similar as well. It appears that governments around the globe are seizing on the "Keep Fear Alive" mantra to get greater and greater power to spy on citizens.

Filed Under: c-51, canada, civil liberties, surveillance, terrorism

Book Publishers Whine To USTR That It's Just Not Fair That Canada Recognizes Fair Dealing For Educational Purposes

from the you-know,-like-US-law dept

A few years ago, Canada's Supreme Court made it clear that "fair dealing" should be applied broadly, especially in educational settings. Fair dealing, of course, is similar to fair use -- and, in the US, in theory, educational uses are also supposed to qualify for fair use. As Section 107 of the US Copyright Act states:

The fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

Thus, it seems like the Canadian interpretation is very much in line with the US's statutory view of fair use. Of course, over the years, in the US, publishers have repeatedly chipped away at fair use, such that now that Canada has moved to a position more akin to what the US's is supposed to be, those same publishers are absolutely flipping out. Last year, we noted that those US publishers submitted a recommendation to the USTR claiming that fair dealing in Canada was simply piracy. This was the publishers' submission to the USTR for consideration in preparing its annual Special 301 Report.

Apparently, this "fair dealing = piracy" argument didn't play well enough at the USTR and didn't make this year's Special 301 charade. So, the publishers are pissed. Or so reports a recent bit in Politico's Morning Trade (I'd link to the actual story, but Politico apparently doesn't believe in making it easy to permalink to its Morning Trade tidbits, so it's no longer there), where it notes they've asked the deputy USTR (and former BSA boss) to do something.

Deputy U.S. Trade Representative Robert Holleyman is traveling to New York today to attend the opening ceremony of BookExpo America, put on by the Association of American Publishers. The industry group is steamed over USTR’s failure in a recent report to confront what it regards as Canada’s overly broad copyright exception for educational purposes. “Active engagement by the U.S. and Canada to remedy the damage should not be put off any longer,” the AAP said.

Think about that for a second. Here are American publishers flat out complaining about Canada setting up its laws to help people get educated. Do these publishers think even in the slightest about the kind of message they're sending out? "Fuck educating children -- we want more money."

Filed Under: book publishers, canada, education, fair dealing, fair use, robert holleyman, ustr
Companies: association of american publishers

While Other Countries Debate Copyright Terms, Canada Just Takes Record Labels' Word That It Needs To Increase

from the because-of-course dept

Pretty much since the dawn of copyright, there have been debates about what the proper length of copyright's term should be. Sometimes these debates can be heated and passionate. Go all the way back to 1841, in the UK, where Thomas Macaulay gave his famous speech against copyright term extension, in which he noted how it was being done based on no actual evidence of necessity:

Copyright is monopoly, and produces all the effects which the general voice of mankind attributes to monopoly. My honorable and learned friend talks very contemptuously of those who are led away by the theory that monopoly makes things dear. That monopoly makes things dear is certainly a theory, as all the great truths which have been established by the experience of all ages and nations, and which are taken for granted in all reasonings, may be said to be theories. It is a theory in the same sense in which it is a theory, that day and night follow each other, that lead is heavier than water, that bread nourishes, that arsenic poisons, that alcohol intoxicates.

If, as my honorable and learned friend seems to think, the whole world is in the wrong on this point, if the real effect of monopoly is to make articles good and cheap, why does he stop short in his career of change? Why does he limit the operation of so salutary a principle to sixty years? Why does he consent to anything short of a perpetuity? He told us that in consenting to anything short of a perpetuity he was making a compromise between extreme right and expediency. But if his opinion about monopoly be correct, extreme right and expediency would coincide. Or rather why should we not restore the monopoly of the East India trade to the East India Company? Why should we no revive all those old monopolies which, in Elizabeths reign, galled our fathers so severely that, maddened by intolerable wrong, they opposed to their sovereign a resistance before which her haughty spirit quailed for the first and for the last time? Was it the cheapness and excellence of commodities that then so violently stirred the indignation of the English people?

I believe, Sir, that I may safely take it for granted that the effect of monopoly generally is to make articles scarce, to make them dear, and to make them bad. And I may with equal safety challenge my honorable friend to find out any distinction between copyright and other privileges of the same kind; any reason why a monopoly of books should produce an effect directly the reverse of that which was produced by the East India Companys monopoly of tea, or by Lord Essexs monopoly of sweet wines. Thus, then, stands the case. It is good that authors should be remunerated; and the least exceptionable way of remunerating them is by a monopoly. Yet monopoly is an evil. For the sake of the good we must submit to the evil but the evil ought not to last a day longer than is necessary for the purpose of securing the good.

Since then, of course, there have been many, many debates on the proper length of copyright terms. But usually, at the very least there is some debate about it, with people weighing in on various sides.

That's why it was somewhat astounding, last month, when Canada just announced with no warning that it was extending copyright as part of a budget update. There was no discussion around it. No public debate. Nothing at all.

And, now, as Michael Geist has discovered, Prime Minister Stephen Harper's correspondence with the recording industry shows that he just decided to ratchet up copyright term himself, without even asking for public input or even bothering to consider how such a move might harm the public.

Thank you for your recent letter regarding the copyright term for sound recordings. I have reviewed this material carefully, and share your view that the current term of copyright protection for sound recordings falls short of what is required to protect artists and ensure they are fairly compensated for their work.

Please know that, as announced today in Budget 2015, our Government will extend copyright protection for sound recordings from 50 to 70 years. The extension will be incorporated into the Budget Implementation Act, and will be in effect immediately upon passage of the legislation.

This is quite incredible on many different levels. Harper must know that any change to copyright law is controversial and deserves public debate and discussion. After all, he's been through a few debates concerning copyright reform in Canada. Did he really think that he could just do this without anyone noticing?

And, really, considering that this is a move to flat out take away the public's rights, you'd have to think that it's only appropriate to at least hold a public discussion about whether or not extending copyright in such a manner makes sense. But, nope. The head of the Canadian recording industry lobby sent a letter, and Harper said "Sure, let's slip that into the budget."

As Michael Geist notes, the whole thing is incredible on many levels:

The letter is remarkable as it confirms that the copyright term extension for sound recordings was strictly the product of behind-the-scenes industry lobbying with no broader public consultation or discussion. While other countries spent years debating the issue with careful study, the Canadian government simply caved on the issue based on a little lobbying from foreign record labels. The Conservative government did not consult with Canadian companies or retailers about the impact of their changes, nor did they dig into the data that would have revealed that this change will decrease revenues for many artists. Instead, the major record labels pulled out all the stops to block competitive new records from entering the marketplace and the Prime Minister obliged by including copyright reforms in a budget bill.

Filed Under: canada, copyright, copyright terms, debate, lobbying, stephen harper

Canadian Law Enforcement Complains Child Molesters Are Benefiting Most From ISP Subscriber Data Warrant Requirements

from the today-on-This-Old-Rhetorical-Device dept

Ever since the Canadian Supreme Court declared law enforcement needed a warrant or court order to obtain ISP subscriber data, Canadian cops have been complaining. What used to be an "informal" process that required "five minutes" of paperwork (and led to law enforcement requesting ISP user data every 27 seconds), now apparently takes up to "ten hours" and is apparently damn near impossible to complete.

As a result, law enforcement has been forced decided to drop cases in which it couldn't put together enough probable cause to secure a warrant or court order. For some reason, the affected agencies seem to feel this is indicative of a broken system, rather than the way it always should have been. If an officer doesn't have enough agency to justify a request for subscriber data, does he or she really have enough information to justify a continued investigation?

The Royal Canadian Mounted Police (RCMP) were the first to complain about the warrant requirement, circulating a memo late last year that declared the ruling was probably resulting in dropped cases -- although this claim also seemed to be short on supporting information.

"Evidence is limited at this early stage, but some cases have already been abandoned by the RCMP as a result of not having enough information to get a production order to obtain (basic subscriber information)," the memo says.

Apparently, this round of complaints didn't gain enough traction to motivate legislators to undercut the Supreme Court decision. So, law enforcement officials are trying again, but this time they're using one of the cheapest and most overused rhetorical ploys: child molesters/pornographers going unarrested.

An RCMP spokesman confirmed the court decision has hampered the ability of police to track down Internet child abusers.

The ruling "has added extra administrative steps to such investigations by requiring police to obtain production orders for basic subscriber information," said Sgt. Harold Pfleiderer.

"Now, investigations of online child exploitation usually take more time. In many cases, there is insufficient information for police to obtain a production order even with the jurisdictional request information."

When Pfleiderer says "administrative," he's actually referring to the minimal efforts officers must make to ensure the civil liberties of Canadian citizens aren't violated. To him, it's just extra paperwork. To the rest of the nation, it's nothing more than what they've generally expected from their service providers when dealing with data requests: that it won't be handed over without justification.

The RCMP want legislators to pave it an unimpeded path to subscriber data -- something the Court's decision noted was a remedy (of sorts) for law enforcement agencies who felt being asked to respect the rights of others was too much of a burden. And nothing prompts legislators to act quickly and inconsiderately like claiming an untold number of pedophiles are wandering the nation completely unarrested.

The Supreme Court ruling suggested the government could pass a "reasonable" law to allow police to obtain basic subscriber information from ISPs, but a spokesman for Public Safety Minister Steven Blaney indicated that is not yet in the works.

"Our government is currently reviewing the decision," said Jeremy Laurin.

Adding to the stupidity, a top online porn cop paraphrases Dirty Harry to suggest some citizens should have fewer rights than others, even while still in the mostly-speculative part of an investigation.

"It's creating a lag in our investigations," said Sgt. Maureen Bryden of the Ottawa police online porn unit. "It's taking more time for us to get to the serious investigations."

"Whose rights do you really think are more important?" she said, criticizing the Supreme Court ruling. "The victim child that's being sexually exploited? Or the offender?"

Oh, I'd say they're equally important. The same court decision that "protects" child molesters also protects the millions of Canadian citizens who've never committed a criminal act in their lives. But the police want suspects to have fewer rights, even if it means those who aren't suspects end up with fewer privacy protections.

Bryden cites a "lag" and other quotes say cases can't be prioritized effectively to allow the pursuit of sexual offenders. But looking at the actual numbers blows any claims about workloads or priorities right out of the water. In 2011, Canadian law enforcement filed nearly 1.2 million requests for subscriber data. The 2013 stats quoted in this article cite a 50% drop off in requests related to child exploitation cases from 2013's high of 1,038. Somewhere in between there -- if request numbers remained largely flat (rather than escalating) from year-to-year -- that's still nearly 1.2 million requests for data every year that have nothing to do with Canadian law enforcement's sudden foremost concern. I think there's plenty of room left for shifting man-hours towards preventing child exploitation -- even with the warrant requirement.

Filed Under: canada, court order, fud, isps, law enforcement, subscriber data, warrants

Quebec Town Makes It Illegal To Insult Police Officers And Other Public Officials

from the hi,-I'm-a-non-resident-and-I'd-like-to-insult-you dept

I'm not sure where so many public officials get the idea that the job is best-suited to those with the thinnest skin.

Be careful what you write about police officers online — if you live in Granby, Que., you could get slapped with a hefty fine.

The municipality about an hour outside of Montreal is seeking the right to issue fines ranging from $100 to $1,000 to people caught insulting police officers or municipal employees on the internet.

Maybe it's a Quebec thing? Here's a TD post from way back discussing Rawdon, Quebec, which -- in a postively Ardisian move -- not only forced a site offline but sent the cops after the site owner.

The city council of the small town of Rawdon, Quebec (population: 9400) has managed to get a court order to shut down an online forum (French only) because its users were posting messages that were considered 'defamatory and detrimental to the reputation' of the elected board. Police raided the forum owner's house, copied his entire hard drive and asked him to delete the offending posts, and when he said he had over 8,000 messages to look through, they did not specify which ones were specifically targeted.

But hey, #NotAllCanadiens. The South Pittsburg City, Tennessee has also done its part to ensure governing bodies aren't stung by the harsh words of constituents.

The commissioners of a small Tennessee town have just voted to ban negative comments about it from social media. This stupid move was prompted by "criticism and lies" being posted online, which supposedly "hampered" the town's government from performing its duties.

Granby's bylaw rewrite didn't originate from the bruised feels of council members or city commissioners, but rather from its police force, which found Kevlar body armor may be great for stopping bullets, but does little to stop hurtful words.

The move comes after town officials discovered a Facebook page called Les policiers zélé de Granby — The Zealous Police of Granby.

And, of course, defenders are stepping up to explain that this is no more than an extension of stupid, previously-existent bylaw.

According to Catherine Bouchard, the director of legal services for Granby, a bylaw already exists for face-to-face insults and has been used in recent years for online slurs.

In order to raise the level of online discourse, insults directed at a select group of people -- public servants -- must be criminalized. The deputy mayor's justification is even worse.

"In my opinion, if I threaten you via my keyboard, it's as though I am making that threat right in front of you.… For me, it's the same thing," said Robert Riel, Granby's deputy mayor.

Threats are a criminal offense and I would assume there are laws in place to address these. Insults -- whether they're face-to-face or from behind keyboards -- are just the end result of the world being filled with people that aren't always pleasant. If the insult rises to the level of defamation, there's legal recourse for that. If the insults turn into harassment, again, turn to the law.

But all of these different forms of unprotected speech are being thrown in with protected speech under a single, badly-written bylaw. Statements from the town's lawyer throw out terms like "slurs," "defamation" and "insults" as though they were all legally interchangeable, making her grasp of the law appear every bit as tenuous as the deputy mayor's.

And then there's this:

"If you put something out on the internet, I don't know what the expectation of privacy is," Bouchard said.

"Let's say I write something about you that's derogatory or that's insulting … do I have the freedom to write anything about you?

"Your freedom of speech does not give you the right to say anything about anybody you want in an insulting manner. I can't destroy your reputation and who you are because I have freedom of speech."

Well, actually you can destroy a citizen's reputation, Ms. Bouchard. You see, the bylaw only protects city officials from insults, not the general public. Cops and council members can retaliate against those who have hurt their feelings by sending a suddenly-motivated police force to cite offenders.

Bouchard and those voting for this act as though free speech is zero sum. Bouchard acts like public figures would have no other way to counter online insults if it wasn't for this skewed law. The same online platforms and forums can be accessed both by the public and their representatives. But this bylaw can only be used by public figures.

The Huffington Post coverage notes that the local police hadn't offered any comment, but were "eagerly awaiting" the results of the vote. I bet they were. I'm sure there's a few officers who can't wait to take down the people behind the "insulting" Facebook page -- those clever malcontents who thought they were above the law when they expressed themselves using protected speech.

Filed Under: canada, free speech, granby, insults, police, quebec

France And Canada Both Move To Massively Expand The Surveillance State

from the because-reasons dept

Just as we're (finally) having something of a debate in the US about at least rolling back some of the worst aspects of the PATRIOT Act and the surveillance state (though, not nearly enough), it appears that both France and Canada are moving in the other direction. In France, they're using the Charlie Hebdo attacks as an excuse for a massive surveillance expansion, that not only will lead to the government collecting and sifting through much more information, but with less oversight:

At a moment when American lawmakers are reconsidering the broad surveillance powers assumed by the government after Sept. 11, the lower house of the French Parliament took a long stride in the opposite direction Tuesday, overwhelmingly approving a bill that could give authorities their most intrusive domestic spying abilities ever, with almost no judicial oversight.

The bill, in the works since last year, now goes to the Senate, where it seems likely to pass, having been given new impetus in reaction to the terrorist attacks in and around Paris in January, including at the offices of the satirical newspaper Charlie Hebdo and at a kosher grocery, that left 17 people dead.

And then we see Canada doing the same thing:

Widespread protest and souring public opinion has failed to prevent Canada’s ruling Conservative Party from pushing forward with sweeping anti-terror legislation which a battery of legal scholars, civil liberties groups, opposition politicians and pundits of every persuasion say will replace the country’s healthy democracy with a creeping police state.

Prime Minister Stephen Harper is looking forward to an easy victory on Tuesday when the House of Commons votes in its final debate on the bill, known as C-51. But lingering public anger over the legislation suggests that his success in dividing his parliamentary opposition may well work against him when Canadians go to the polls for a national election this fall.

Despite widespread protests and concerns about both laws, the governments in both countries are just pushing forward , spreading FUD left and right to try to paper over why they need to absolutely destroy the privacy rights of the public. It appears that governments around the globe are seeing world events as a convenient excuse to ratchet up their own power, while taking away rights from citizens. In both countries, leaders supporting these measures talk about ISIS and "jihadi terrorism" and completely dismiss the complaints about a lack of oversight. However, in both cases, what little oversight there is of the new surveillance capabilities is very much of the rubber stamp variety. First, in France:

The only judicial oversight is a provision that allows the commission to lodge a complaint with the Council of State, but lawyers are dubious that they could be convened on a routine basis. The Council of State functions as a legal adviser to the executive branch of government and a supreme court for matters of administrative law.

And then in Canada:

Critics of the legislation say the imminent law gives Canadian spies sweeping new powers to investigate and disrupt broadly defined threats to public safety, with language that makes no distinction between terrorist plots and legitimate political protests and demonstrations. At the same time, it neglects to provide any increased oversight of the country’s vastly empowered chief spy agency, the Canadian Security and Intelligence Service.

Whatever happened to countries that respected liberty and freedom?

Filed Under: canada, france, mass surveillance, oversight, patriot act, surveillance

Canada Extends Copyright Terms, Finally Giving Musicians Who Released Works More Than 50 Years Ago A Reason To Create

from the INCENTIVES! dept

For reasons no more sound than it possibly felt a bit inadequate when comparing copyright term length with its next-door-neighbor, Canada has increased the copyright term for sound recordings and performances from 50 years to 70 years. Supposedly, this will spur on further creative efforts in the future, seeing as the previous copyright term length brought about a creative drought spanning nearly two decades -- one that commenced shortly after the end of World War II.

This move will allow Canada to keep apace of the United States' contributions to the public domain by ratcheting that number closer to the desired "zero." This should also trigger a massive explosion in creation, seeing as many recording artists will now be able to monetarily support their record labels far into their golden years (theirs -- not the record labels'). This will also serve to keep the recordings out of the hands of deadbeats… like libraries… or archivists.

Michael Geist figures the TPP is behind this copyright extension.

The TPP is nearing the end game and the U.S. is still demanding many changes to Canadian copyright law, including copyright term extension for all works (not just sound recordings). The Canadian government’s strategy in recent years has been to enact reforms before the trade agreements are finalized in order to enhance its bargaining position. For example, it moved forward with notice-and-notice rules for Internet providers without the necessary regulations in order to have the system in place and protect it at the TPP talks. It may be trying to do the same here by extending term on sound recordings and hoping that that concession satisfies U.S. copyright demands.

This outside pressure would seem to be the prime motivator. It certainly isn't coming from within the country -- not even from the expected cheerleaders of upwardly-mobile copyright terms.

[J]ust last year the Standing Committee on Canadian Heritage conducted a major review of the music industry in Canada with dozens of witnesses taking the time to appear or submit briefs. The final report and the government’s response never raise the term of protection for sound recordings and performances as a concern.

But Canadian citizens shouldn't get too upset by this wholly expected turn of events. After all, as the head of Music Canada (RIAA, but maple-flavored) points out, an increasingly empty public domain is much better for the public than the alternative.

"With each passing day, Canadian treasures like Universal Soldier by Buffy Sainte-Marie are lost to the public domain. This is not in the public interest. It does not benefit the creator or their investors and it will have an adverse impact on the Canadian economy.”

Perhaps this argument could be repurposed for income tax: "Contributing money to public funds is not in the public interest. It does not benefit the guy who wants to keep all that money for himself." The "public interest," apparently, is whatever benefits the labels represented by Music Canada, rather than any other commonly-accepted definition.

Perhaps the worst excuse for this unneeded extension is this: it helps producers and musicians catch up with the positively surreal copyright terms songwriters and composers enjoy.

Songwriters and performing artists both contribute to the success of a recording. In Canada, the copyright in musical works subsists for the life of the songwriter plus 50 years. Performing artists are not treated equally, as their copyrights expire 50 years after the recording is made. Term extension to 70 years after recording or release partially addresses this disparity.

The smarter move would be to adjust the lengthier term down, rather than crank the shorter terms up. But once you've handed out this extension to a set of creators, you'll never be allowed to roll it back. The creators may recognize the ridiculousness of this arrangement, but those that benefit the most from extended terms -- the middlemen -- have enough clout to ensure copyright protections constantly expand.

Filed Under: canada, copyright, life plus 50, life plus 70, public domain, term extension, terms, tpp

Court Adds Much-Needed Element Of Malice To Nova Scotia's Terrible Cyberbullying Law

from the one-of-the-many-problems-with-emotionally-charged-laws dept

Nova Scotia's supremely awful cyberbullying law is finally receiving a much-needed tweak, but it took a trip to the Supreme Court to do it. (As noted by a commenter below, the Supreme Court is just Nova Scotia's first level of trial court, rather than the province's highest court.) The law's original wording was so broad it had the potential to "make bullies of us all," as MacLean's Jessie Brown put it when the law went into effect.

The law -- hastily pushed through the legislative system in response to a cyberbullying victim's suicide -- contained this passage, which was open-ended enough to criminalize all sorts of previously-protected speech:

…any electronic communication through the use of technology including, without limiting the generality of the foregoing, computers, other electronic devices, social networks, text messaging, instant messaging, websites and electronic mail, typically repeated or with continuing effect, that is intended or ought reasonably [to] be expected to cause fear, intimidation, humiliation, distress or other damage or harm to another person’s health, emotional well-being, self-esteem or reputation, and includes assisting or encouraging such communication in any way.

As attorney Karen Bennett-Clayton explains, this wording eliminates nearly every form of defense against cyberbullying allegations. (via Barry Sookman)

This definition of cyberbullying captures a wide range of communication, from the truly insidious statements calculated to cause fear and intimidation to statements that are simply embarrassing or somehow harmful to the recipient’s emotional well-being. The definition contains no requirement to show motive or intent, nor does it require that the communication be false or misleading. On a plain reading of it, true statements could be considered cyberbullying so long as they are repeated and are distressing or harmful to someone’s self-esteem. Moreover, and as it includes those who “assist” in such communications, the definition is also arguably broad enough to include those who publish the electronic communication, such as web hosts or internet service providers (ISPs).

Safeguards that are typically seen in defamation and harassment laws are completely missing from Nova Scotia's cyberbullying law -- which would explain why a person who felt himself a victim of defamation or harassment might take the easier route and use the badly-written cyberbullying law to shut down his "bully," instead. And that's true, even though much of what was said had not risen to the level of defamation, and much of what was contested occurred before the law went into effect.

The court examined the law and the protective order issued by a lower court justice of the peace and found both wanting. As for the law's wording itself, the Supreme Court found it too inclusive to be anywhere near reasonable and, in fact, a threat to normally protected speech. While the law is in place to address cyberbullying, the definition is vague enough to cover far more than internet communications. This has the potential to stymie news reporting through traditional channels, as well as cover "communications" never intended to be included in the cyberbullying law.

Both the ordinary meaning of “electronic” and the inclusive definition capture uses of electricity for communication that were common long before cyberspace (1984). Here are a few examples from the old days: cylinder phonograph records (1877); disc gramophone records (1894) including 78s (1898), long plays (1948), singles (1949), and extended plays (1952); studio cast recordings (1943 or before); broadcasting by way of commercial radio (1920s), commercial television (1928), walkie-talkie (1940), and citizens’ band (1948), and, of course; telegraph (1834) and telephone (1876), including fax (1964). All of these are within the definition of “electronic”, at least when it is read literally.

The Supreme Court continues, providing examples of how this badly-written law could be twisted to cover nearly every form of communication imaginable, so long as the communication itself causes "fear, intimidation or distress."

The first thing to note in the definition of cyberbullying is the disconnect between the ordinary meaning of the word and the literal definition. One who communicates electronically, whether it be by text message or telephone, and says something reasonably expected to cause fear, intimidation, humiliation, or distress is a cyberbully.

The next thing to note is the absence of conditions or qualifications ordinarily part of the meaning of bullying. Truth does not appear to matter. Motive does not appear to matter. Repetition or continuation might (“repeated or with continuing effect”) or might not (“typically”) matter. A neighbour who calls to warn that smoke is coming from your upstairs windows causes fear. A lawyer who sends a demand letter by fax or e-mail causes intimidation. I expect Bob Dylan caused humiliation to P. F. Sloan when he released “Positively 4th Street”, just as a local on-line newspaper causes humiliation when it reports that someone has been charged with a vile offence. Each is a cyberbully, according to the literal meaning of the definitions, no matter the good intentions of the neighbour, the just demand of the lawyer, or the truthfulness of Mr. Dylan or the newspaper.

As the court sees it, the law demands the inclusion of a motivation -- malice -- and yet, its hurried passage failed to include this key element. Adding in that factor goes against the lower court's finding justice of the peace's decision and nullifies the issued protective order.

The evidence does not malice as required, according to my interpretation, for a finding of cyberbullying after August 6, 2013. Firstly, the events after that date, except for the mikemacdonald1975@hushmail.com e-mail, are relatively mild. Secondly, the full correspondence between Mr. Baha’i and Mr. Fraser about removal, which Justice of the Peace Gass did not see, shows efforts by Mr. Baha’i, an unanswered request for suggestions, and statements of Mr. Fraser’s assessment of Mr. Baha’i’s liabilities closing the discussion. This correspondence is inconsistent with malice on Mr. Baha’i’s part.

[...]

Mr. Self chose his forum. It is one in which Mr. Baha’i is entitled to disclosure and discovery, to fully test the many allegations. Unlike Cyber-safety Act proceedings, it is one in which the parties can find out who is behindmikemacdonald1975@hushmail.com, rather than speculate. It is also a forum in which serious risk of defamatory repetition could be controlled by interim injunction, without the ex parte one-sidedness of the Cyber-safety Act. Despite this, the cyber protection order prevents Mr. Baha’i from communicating with the very person who is suing him.

The evidence satisfies me that malicious repetition by Mr. Baha’i is unlikely. Unlike Justice of the Peace Gass on the ex parte application, I have a full picture of the attempts to satisfy Mr. Fraser’s demands on behalf of Mr. Self. Whether he can force Mr. Baha’i to expunge what is not in his control, and whether he can recover damages against Mr. Baha’i for third party reproductions, risk of repetition by Mr. Baha’i is not in issue. Also, unlike the justice, I take into account that the Cyber-safety Act was not law when Mr. Baha’i was active on the present subject.

Summing up, the Supreme Court finds Nova Scotia's cyberbullying law -- as written -- to be a threat to protected speech.

In my assessment, the damage caused by the cyber protection order to Mr. Baha’i’s constitutional right to free speech and to his property right to use his own equipment outweighs the potential harm to Mr. Self if Mr. Baha’i is able to communicate freely. Justice requires that the order be revoked.

This fixes one of the major holes in the law, and restores much-needed protections for uninvolved third-parties (social media platforms, ISPs) who can't, by definition, show malice by hosting or transmitting communications made illegal by this law.

Unfortunately, it doesn't address another of its major flaws -- the wholly ex parte accusation process, which can result in severe penalties for the accused (loss of internet connection or access to electronic devices, gag orders, etc.) without being allowed to present their side of the issue in court.

Filed Under: canada, cyberbulling, intent, malice, nova scotia

Quebec Looking To Force ISPs To Block Gambling Sites In Order To Protect Its Own State-Run Gambling Portal

from the there's-nothing-more-sincere-than-a-government-entity-ensuring-its-own-exist dept

Should a government body attempt to block websites for its own financial gain? [To anyone that answered "Yes," I say, "Really?"] This question doesn't seem to be troubling Quebec's government, which submitted a budget that contained the following -- all without uttering a single word like "conflict" or "interest."

In its budget released Thursday, the province said it plans to propose new legislation that would compel Internet service providers (ISPs) to block access to a list of gambling websites drawn up by Loto-Québec.

Loto-Québec, of course, is the province's own revenue stream, which allows citizens to contribute extra funds to their government via games of skill. Great stuff for those who enjoy this more voluntary form of taxation, but the internet is full of other options. And that fact makes Loto-Québec very sad. But the government is always willing to cheer itself up!

The government states its aim is to direct revenues to its own gambling website, Espacejeux, noting Loto-Québec’s revenues have fallen in recent years and stating, “it is only the online gaming market that has growth prospects.”

So, it's hoping to double its money by doubling down on blocking "illegal gambling websites." It cheerfully estimates that -- if it can just get hesitant ISPs on board -- its gambling revenues will generate $13.5 million in 2016-17 and $27 million a year after that, apparently in perpetuity.

Now, there are a lot of fallacies in play here, not the least of which is that budgeted income will always meet planned figures forever -- a conclusion made while operating in a vacuum devoid of external circumstances, perverted incentives or the foibles of the public. But it has to get ISPs to agree to enforce Loto-Quebéc's blacklist first, and so far, ISPs aren't expressing any desire to force their customers into a government-created gambling funnel.

Bram Abramson, chief legal and regulatory officer for independent ISP TekSavvy Solutions Inc., said the proposed legislation raises concerns about the neutral role of Internet providers.

“ISPs are intermediaries and we do what we do best when we act a little bit like utilities: We provide access to the Internet. We should not be put in a position of picking and choosing what people have access to,” he said in an interview Friday.

This is all customers want internet providers to be… all over the world: dumb terminals that provide them access to the Web. They don't want government filtering/blockades, throttling, ISP portals, data caps or anything else governments/ISPs have in mind for them. They want an open pipe and access to the tap. That's it.

But like all of these listed efforts, this too is being done in the [what a crock] "best interests" of Quebec's internet users.

Quebec said the website blocking measure is also aimed at improving public health because “illegal websites do not apply the same responsible gaming rules as Espacejeux. They thus pose a risk to the population, especially young people.”

Ah, yes. The "young people." Who hasn't heard numerous stories about the lasting damages inflicted on unwary youths by rogue gambling sites? Why, it's practically Grand Theft Auto meets the Adult Video Awards in there!

The only thing troubling Quebec's government is the fact that these sites are horning in on its racket. Michael Geist calls it what it is:

…[A] “remarkable and possibly illegal plan as the government seeks to censor the Internet for its own commercial gain.”

And those behind the plan to possibly illegally censor the internet to prop up the province's flagging cash cow just keep doubling down.

In an interview Friday, Quebec Finance Minister Carlos Leitao said the measures are not in place yet but he believes implementing them is “perfectly feasible.”

“This applies to gambling sites, unlicensed gambling sites,” the minister said. “So I don’t think there’s an issue of censorship.”

And again, I must say, "Really?" How does a government-ordered blacklist of sites not veer into "censorship" territory, especially when the list of targeted sites was written by a government entity with both eyes on its own bottom line?

Beyond that, blocking doesn't work and it always causes collateral damage. Blocking illegalgamblinghotspot.tu might (MIGHT!) be acceptable (if a really questionable use of government power and resources), but doing so solely to hit budget figures dreamed up by imaginative government reps isn't -- especially considering the province has no direct control over telecoms, which would mean dragging Canada's federal government into this sloppy, ill-conceived turf war.

Filed Under: canada, competition, filters, gambling, online gambling, quebec, website blocking