Law Bytes

Canadian digital law and policy in 2024 featured the long-delayed online harms bill, controversial implementation of streaming and online news legislation, as well as a myriad of notable copyright, AI, and privacy court cases. Government legislation stalled in the House of Commons, but with trade battles over a digital services tax, a competition case against Google, and plans to kick TikTok out of the country, there were no shortage of high profile issues. For this final Law Bytes podcast of 2024, I go solo without a guest to talk about the most significant developments in Canadian digital policy from the past year.

Canada’s largest media companies came together recently to file a copyright infringement lawsuit against OpenAI, the owners of ChatGPT. I wrote about the suit, suggesting that the primary motivation behind the suit was likely the hope to kickstart settlement discussions with the hope of a licence. Robert Diab, a law professor at Thompson Rivers University, raised similar thoughts in his own piece on the lawsuit. Robert joins the Law Bytes podcast to discuss the case and its implications for copyright and AI in Canada.

The Standing Committee on Canadian Heritage has for the past month been conducting a study on protecting freedom of expression. The counters of the study aren’t entirely clear. In fact, after I was invited to appear, I asked for some sense of what the committee was looking to address. There wasn’t much detail, which has really left it open for witnesses to cover whatever issues they like. I chose to focus my time on two issues: the expression implications of Canadian digital policy and the chilling effect of antisemitism. The two issues have really dominated my attention in recent months. Digital policy – including Bills C-11, C-18, C-63, and S-210 for years now and the antisemitism issues an enormous concern post October 7, 2023. This week’s Law Bytes podcast takes the listener into the hearing room and the wide range of questions from Liberal, Conservative, and Bloc MPs my opening statement sparked.

Consumer frustration with just about everything associated with Canadian communications services is well known. The list of concerns is long: high prices, contracts that lock in consumers but not providers, gaming prices to make comparison shopping difficult, and confusing consumer codes among them. As politicians have begun to take notice, the CRTC has suddenly become more active with several consultations and new consumer focused initiatives. My colleague Marina Pavlović, a law professor at the University of Ottawa, has been at the forefront of consumer rights law and communications services for many years. She joins the Law Bytes podcast to talk about the ongoing consumer challenges and the latest CRTC developments.

The recent announcement of a Canadian government decision to ban the corporate offices of TikTok but leave the app untouched has left many puzzled since the approach may actually make matters worse. The potential privacy and security risks associated with the app will remain but the ability to hold the company accountable will be weakened. While the government has downplayed the impact of the decision, the reality is that a TikTok exit from Canada will have an impact on Canadian digital creators. This Law Bytes podcast breaks down the implications, including a discussion with Scott Benzie, the Executive Director of Digital First Canada, who identifies the digital creator concerns. 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. Credits: CBC News, Ottawa Bans TikTok’s Canadian Operations - But Not the App, November 7, 2024

The Online Harms Act or Bill C-63 was introduced last February after years of false starts, public consultations, and debates. Months later, the bill appears to be stalled in the House of Commons and has yet to make it to committee for further study. Some view that as a win, given their criticism of the bill, though others who have waited years for action against online harms are beginning to fear that the Parliamentary clock is working against them. Emily Laidlaw, the Canada Research Chair in Cybersecurity at the University of Calgary and Taylor Owen, the Beaverbrook Chair in Media, Ethics and Communications at the Max Bell School of Public Policy at McGill University, have both been actively engaged in this issue for years, including their participation on the government’s expert advisory group. They join the Law Bytes podcast to discuss where things stand on Bill C-63 and the steps they recommend to get the bill back on track for study and debate.

It has been many years since the Facebook and Cambridge Analytica privacy scandal captured headlines. The services at the heart of the case no longer exist, but the legal case in Canada continues to march on. Last month, the Federal Court of Appeal overturned a lower court decision that had largely sided with Facebook. In its place, it released a new decision that includes and analysis of reasonableness under the Canadian privacy law and engages with the notion of a potential trust but verify standard in some cases when data is transferred to third parties. The case may not be over yet, but the latest decision has big implications for privacy in Canada. David Fraser, one of Canada’s leading privacy practitioners with McInnes Cooper and the creator a popular Youtube channel on privacy law, joins the Law Bytes podcast to provide the background on the case, assess the key findings, and consider what may come next.

For over 25 years, the World Trade Organization, an intergovernmental organization based in Geneva, Switzerland that regulates and facilitates international trade, has grappled with how to engage with e-commerce. What started as a moratorium on customs duties has expanded into the development of a new agreement that touches on a wide range of issues including privacy, data localization, and electronic contracting. The new deal has been heralded as groundbreaking, but some aren’t fully convinced that it actually does break new ground. Patrick Leblond is a University of Ottawa professor in the Graduate School of Public and International Affairs where he specializes in economic governance and policy, with a focus on North America, Europe and, increasingly, China. He joins the Law Bytes podcast to talk about the latest developments and assess the potential impact of the WTO’s new e-commerce agreement.

This podcast drops on Monday, October 7th, the one-year anniversary of the largest massacre of Jews since the Holocaust. I’ve largely kept the issue the rising tide of antisemitism since the Hamas terrorist attacks off the Law Bytes podcast, but those that follow my work will know that I have been vocal on social media and the mainstream media expressing my shock and concern. This episode blends my professional focus on digital policy with my personal concerns regarding antisemitism. The alarming rise of antisemitism over the past year has left many - myself included - in shock. I see it in my social media mentions and on popular sites such as Wikipedia, where it has cropped up on entries involving issues like Zionism and even in the targeting of groups like the Anti-Defamation League. Wikipedia’s antisemitism problem may not have come as a surprise to Professor Jan Grabowski, a professor of Holocaust studies at the University of Ottawa. He conducted a detailed study on the issue in 2023 which focused on the Holocaust page involving Poland, his area of expertise. Professor Grabowski joins the Law Bytes podcast to talk about his work, his Wikipedia study, and the threat of disinformation on the site.

Questions about trust in the media have escalated in Canada in recent months as with each error or questionable tweet, there is seemingly an inevitable chorus of concerns that raise doubts about the implications of government regulation and funding of the media. So where is the Online News Act at right now? What of the new collective designed to distribute the $100 million that Google agreed to pay in return for an exemption from mandated arbitration? And what can be done about the mounting trust deficit? Erin Millar wears several hats including as the CEO & Co-founder of Indiegraf and the interim board chair of the Canadian Journalism Collective, the collective that was picked by Google to administer the $100 million distribution. She joins the Law Bytes podcast in a personal capacity to talk about the latest Bill C-18 developments and what measures might help address trust in Canadian media.

Bill S-210, the controversial age verification bill which purports to limit access to pornography for those under 18, could be headed for a final vote of approval in the House of Commons within the next couple of weeks. Much of the concern with the bill has focused on the privacy and free speech implications of mandating the technology and opening the door to website blocking. Yet often missing from the debate has been a deeper, more nuanced examination of pornography including distinctions between unlawful and so-called awful but lawful content, the role and responsibility of pornography platforms, and alternatives to the S-210 reliance on blocking and age verification technologies. That gap in the debate has now been filled by Professor Elaine Craig of the Schulich School of Law at Dalhousie University in her new book, Mainstreaming Porn. Professor Craig joins the Law Bytes podcast to discuss the book, the massive influence of porn platforms, the problems with Bill S-210, and the legal mechanisms she thinks would best address the issue .

Parliament resumes after a summer break today. While digital policies receded into the background over the past few months, the political intrigue of by-elections and a minority government without an NDP deal will be accompanied by questions about what happens to Bill C-63, Canada’s online harms bill, Bill C-27, the privacy and AI reform bill, Bill S-210, the age verification bill, and a myriad of other regulatory and policy issues. Matt Hatfield is Executive Director of Open Media, one of Canada’s leading digital rights organizations. He joins the Law Bytes podcast to break down where things stand and what other digital policies may command attention.

The battle over a digital services tax has been the subject of Law Bytes podcast episodes for several years as the Canadian government signalled its intent to move ahead with one even as US officials warned of risks of trade retaliation if they did so outside of an international framework. With the DST now in effect, what does trade law have to say and how might the US respond? Meredith Lilly is a full Professor and Simon Reisman Chair in International Economic Policy at Carleton University’s Norman Paterson School of International Affairs. She joins me on the podcast to discuss the current digital trade policy tensions, what our agreements say about complaints and retaliation, as well as explain why a U.S. response on at least the DST seems likely.

It isn’t news that the Canadian news sector is broken: the Online News Act has caused more harm the good, the dependence on government funding and regulation has grown dramatically and undermined public trust, and implementing Bill C-18 has become mired in controversy. Peter Menzies spent three decades as a working journalist and newspaper executive, most notably with the Calgary Herald where he served as its editorial page editor, editor in chief and, finally, publisher. He then spent another 10 years at the CRTC, including four as Vice Chair of Telecommunications. Peter been one of the most prominent voices on the state of the news sector in Canada and he joins the Law Bytes podcast to discuss recent developments alongside proposed reforms that might do a better job of addressing mounting concerns over the independence of the press.

The recent CRTC Bill C-11 decision mandating that streaming services pay 5 percent of their revenues has left seemingly everyone unhappy and sparked multiple legal challenges. While much of the focus has been on video streaming, music was a core part of Bill C-11 and the implications for music streaming services may be the most pronounced. Will Page is the perfect person to unpack these issues. He is the author of the critically acclaimed book Tarzan Economics, the former Chief Economist of Spotify and PRS for Music, the co-host the Bubble Trouble podcast and a regular contributor to BBC, Financial Times, and The Economist. He joins the Law Bytes podcast to provide new data on what the CRTC’s numbers mean and why the decision could ultimately move the Canadian market backwards rather than forward.

Parliament adjourned for the summer last week, meaning both the House of Commons and Senate are largely on hold until mid-September. The Law Bytes podcast focuses intensively on Canadian legislative and digital policy developments and with another Parliamentary year in the books, this week’s episode takes a look back and take stock of where things stand. It features discussion on the implementation of the Internet streaming and news bills (C-11 and C-18) as well as an analysis of the current state of privacy, AI, online harms, and digital tax as found in Bills C-27, C-63, C-69, S-210 and C-27.

The question of copyright and digital locks – technically referred to as anti-circumvention legislation – dates back more than 25 years with creation of the World Intellectual Property Organization’s Internet Treaties and later in Canada with the enactment of the Copyright Modernization Act. The full scope and application of those digital lock rules has been the subject of considerable debate, particularly over how fair dealing fits into the equation. The Federal Court of Canada recently issued a landmark decision on the issue which concludes that digital locks should not trump fair dealing. CIPPIC, the University of Ottawa’s public interest technology law clinic, raised the key arguments on the issue in an intervention in the case led by James Plotkin, a partner with the law firm Gowlings, and David Fewer, CIPPIC’s Director and General Counsel. They join the Law Bytes podcast to talk about the ruling and to clear up some of the misinformation that has been circulating since its release.

Last week, the CRTC released its much-anticipated Bill C-11 ruling on the initial mandated contributions from Internet streaming services. While the government focused on the requirement to contribute 5% of Canadian revenues, a closer look revealed the CRTC largely ignored industry data and the actual contributions from Internet streaming services and seemed entirely unconcerned by the effects on competition and consumer costs. Len St-Aubin is the former Director General of Telecommunications Policy at Industry Canada and played a role in the development of both the Broadcasting Act and Telecommunications Act. He provided consulting services to Netflix until 2020 and has since been an active participant in the debate on Internet policy. He joins the Law Bytes podcast to talk about the CRTC ruling, the state of TV and film production in Canada, and what may lie ahead for the streamers, creators, and consumers.

Bill S-210, the mandated age verification bill for pornography sites that in reality targets everything from Google Search to Netflix, was expected to be the subject of extensive hearings by the Standing Committee on Public Safety and National Security. But after a Conservative filibuster, it appears that there will be only one hearing and that the bill will be reported back to the House unamended. Before that vote, this week’s Law Bytes podcast offers up a “what could have been” hearing on the bill. It features my mock opening statement alongside responses to some of the actual questions raised by MPs on issues such as privacy, website blocking, and poorly defined terms in the bill.

Bill C-27, Canada’s proposed privacy reform and AI regulation bill, continues to slowly work its way through the committee process at the House of Commons with the clause-by-clause review of the AI portion of the bill still weeks or even months away. Recently a group of nearly 60 leading civil society organizations, corporations, experts and academics released an open letter calling on the government to separate the bill into two. Andrew Clement has been an important voice in that group as he tracked not only the committee hearings but also dug into the consultation process surrounding the bill. Clement is a Professor Emeritus in the Faculty of Information at the University of Toronto, where he coordinates the Information Policy Research Program and co-founded the Identity Privacy and Security Institute (IPSI). He joins the Law Bytes podcast to talk about AI regulation in Canada, concerns with the bill, and offers insights into the legislative and consultative process.