Law Bytes

Concerns about the impact of social media on youth have been brewing for a long time, but in recent months a new battleground has emerged: the courts, who are home to lawsuits launched by school boards seeking billions in compensation and demands that the social media giants change their products to better protect kids. Those lawsuits have now come to Canada with four Ontario school boards recently filing claims. Robert Diab is a professor of law at Thompson Rivers University in Kamloops, British Columbia. He writes about constitutional and human rights, as well as topics in law and technology. He joins the Law Bytes podcast to provide a comparison between the Canadian and US developments, a deep dive into alleged harms and legal arguments behind the claims, and an assessment of the likelihood of success.

A little over five years ago, I launched the Law Bytes podcast with an episode featuring Elizabeth Denham, then the UK’s Information and Privacy Commissioner, who provided her perspective on Canadian privacy law. I must admit that I didn’t know what the future would hold for the podcast, but I certainly did not envision reaching 200 episodes. I think it’s been a fun, entertaining, and educational ride. I’m grateful to the incredible array of guests, to Gerardo Lebron Laboy, who has been there to help produce every episode, and to the listeners who regularly provide great feedback. The podcast this week goes back to where it started with a look at Canadian privacy through the eyes of Europe. It flew under the radar screen for many, but earlier this year the EU concluded that Canada’s privacy law still provides an adequate level of protection for personal information. The decision comes as a bit of surprise to many given that Bill C-27 is currently at clause-by-clause review and there has been years of criticism that the law is outdated. To help understand the importance of the EU adequacy finding and its application to Canada, Colin Bennett, one of the world’s leading authorities on privacy and privacy governance, joins the podcast.

The Online Harms Act – otherwise known as Bill C-63 – is really at least three bills in one. The Law Bytes podcast tackled the Internet platform portion of the bill last month in an episode with Vivek Krishnamurthy and then last week Professor Richard Moon joined to talk about the return of Section 13 of the Canada Human Rights Act. Part three may the most controversial: the inclusion of Criminal Code changes that have left even supporters of the bill uncomfortable. Boris Bytensky of the firm Bytensky Shikhman has been a leading Canadian criminal law lawyer for decades and currently serves as President of the Criminal Lawyers’ Association. He joins the podcast to discuss the bill’s Criminal Code reforms as he identifies some of the practical implications that have thus far been largely overlooked in the public debate.

The public debate surrounding Bill C-63, the Online Harms Act, has focused primarily on Human Rights Act and Criminal Code reforms. The Human Rights Act changes include the return of Section 13 on hate speech, which was repealed by the Harper government after criticisms that it unduly chilled freedom of expression. To help understand the history of Section 13 and its latest iteration, this week Professor Richard Moon, Distinguished University Professor and Professor of Law at the University of Windsor joins the Law Bytes podcast. The Canadian Human Rights Commission asked Professor Moon to conduct a study on Section 13 in 2008 and his report is the leading source on its history and application. In this episode, we discuss that history and consider the benefits and risks of inserting it into Bill C-63.

New legislation making its way through the U.S. Congress has placed a TikTok ban back on the public agenda. The bill – which would lead to either a divestiture or ban – has passed the House of Representatives and is now headed to the Senate. On the Canadian front, TikTok is already prohibited on government devices at the federal level alongside some provinces, the government has quietly conducted a national security review, and there are new calls to ban it altogether from the Canadian market. Anupam Chander is a law professor at Georgetown University and leading expert on the global regulation of new technologies. He joined the Law Bytes podcast several years ago when a TikTok ban was raised by the Trump Administration and he returns this week to discuss the latest developments and their broader implications.

The federal government has struggled to update Canadian privacy laws over the past decade, leaving the Supreme Court as perhaps the leading source of privacy protection. In 2014, the court issued the Spencer decision, which affirmed a reasonable expectation of privacy in basic subscriber information and earlier this month it released the Bykovets decision, which extends the reasonable expectation of privacy to IP addresses. Vibert Jack is the litigation director of the BC Civil Liberties Association, which successfully intervened in the case. He joins the Law Bytes podcast to examine the case, including the evolution of Canadian law, the court's analysis, and the implications of Bykovets for Internet privacy in Canada.

The Online Harms Act is the culmination of years of public debate over whether – or how – the government should establish a regulatory framework for Internet platforms in dealing with online harms. Bill C-63 is already attracting considerable controversy, particularly over proposed changes to the Criminal Code and the Human Rights Act. To help unpack the bill, Vivek Krishnamurthy, an Associate Professor at the University of Colorado Law School, joins this week’s Law Bytes podcast. Vivek is a former colleague and Director of the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic and he served as a Commissioner on the Canadian Commission on Democratic Expression and was a member of the government’s Expert Panel on Online Harms.

Twenty years ago today the Supreme Court of Canada released CCH Canadian v. Law Society of Upper Canada, a decision that stands as perhaps the most consequential in Canadian copyright law history as it would firmly establish fair dealing as a users right and serve as the foundation for copyright law in Canada for decades to come. Leading off the hearing several months earlier for the Law Society was Scott Jolliffe, an IP litigator with the law firm Gowlings. Jolliffe was charged with arguing the fair dealing aspects of the case, but it was only at last moment that users right entered the picture. To mark its 20th anniversary, Jolliffe joins the Law Bytes podcast to talk about the CCH case, his strategy and insights from the hearing, and his thoughts on its impact many years later.

The government plans to introduce the Online Harms Act later today, bringing forward long-delayed legislation that will include new responsibilities and liabilities for Internet platforms alongside an extensive complaints and enforcement governance structure. What is likely to be Bill C-63 will focus on protecting children online and will be the most contentious of the government’s Internet regulation bills given the challenge of balancing safeguards with freedom of expression. This week’s Law Bytes podcast features a combined backgrounder and preview of the bill as I walk through the years of failed consultations, expert panels, changing ministers, and challenges in bringing it forward, highlight the key issues at stake, and contrast the online harms bill with Bill S-210, which seems destined to share the spotlight.

Bill C-26, alternately described as a cyber-security, critical infrastructure or telecom bill, remains largely below the radar screen despite its serious implications for privacy, expression, and affordable network access. The bill is currently being studied at a House of Commons committee that seems more interested in partisan political gamesmanship rather than substantive hearings. Kate Robertson is lawyer and senior research associate at the Citizen Lab in the Munk School at the University of Toronto who is a former criminal counsel and the co-author of one of the most extensive Bill C-26 committee submissions. She appeared last week at the committee studying the bill, but with limited opportunity to engage on the issues, she joins the Law Bytes podcast to talk about the bill, the concerns it raises, and some of the potential fixes.

European countries reached agreement late last week on a landmark legislative package to regulate artificial intelligence. AI regulation has emerged as a key issue over the past year as the explosive growth of ChatGPT and other generative AI services have sparked legislation, lawsuits and national consultations. The EU AI Act is heralded as the first of its kind and as a model for Canadian AI rules. Luca Bertuzzi is a Brussels-based tech journalist who was widely regarded as the leading source of information and analysis about the unfolding negotiations involving the EU AI Act. He joins the Law Bytes podcast to explain the EU process, the ongoing opposition by some countries, and the future steps for AI regulation in Europe.

I’ve described Bill S-210, the Protecting Young Persons from Exposure to Pornography Act, as the most dangerous Internet bill you’ve never heard of as it contemplates measures that raise privacy concerns, website blocking, and extend far beyond pornography sites to include search and social media. The bill started in the Senate and having passed there is now in the House of Commons, where MPs voted in favour of it at second reading and sent it to committee for further study. Senator Julie Mivelle-Dechêne is the chief architect and lead defender of the bill. A former Radio-Canada broadcaster who was appointed to the Senate by Justin Trudeau in 2018, she joins the Law Bytes podcast to debate her bill as she provides her rationale for it and defends against the criticism and concerns it has sparked.

Canadian digital law and policy in 2023 was marked by so many legislative battles that you needed a scorecard to keep track: Bill C-11 on online streaming, Bill C-18 on online news, and Bill C-27 on privacy and AI were the headliners, but there were notable developments on content regulation, competition, and a digital services tax. For this final Law Bytes podcast of 2023, I go solo without a guest to talk about the most significant developments in Canadian digital policy from the past year and to think a bit about what may lie ahead in 2024.

The CRTC just concluded a three week hearing on Bill C-11 with its primary focus on the prospect of mandating interim payments by Internet streaming services. The result was predictable as just about everyone made their way to Gatineau to make their case for cash. I appeared for the first time before the CRTC where argued that it should prioritize competition, consumer choice and affordability, recognizing that the emerging system brings with it risks of market exit or higher prices. This week’s Law Bytes episode goes inside the Commission hearing for my opening statement and exchanges with the panel of Commissioners.

The Canadian government tried to salvage the Online News Act last week as its struck a deal with Google that will bring in $100 million to support the news sector and remove concerns about blocked news links. The government had to overhaul its own law in order to reach the agreement, tossing aside most of the core elements in favour of a fund-style single payment from Google. The reaction to the agreement from the news sector has been mixed at best with relative silence from many supporters and outright opposition from the likes of Torstar. So what to make the of the deal and what comes next? Jeff Elgie is the CEO of Village Media, one of the largest independent, digital-only news outlets in Canada. He joins the Law Bytes podcast to walk though his participation in the process, reaction to the agreement, and thoughts for the future.

For many years, Canadians have lamented the state of competition for Internet broadband services, pointing to concerns regarding price and lack of choice. Earlier this month, the CRTC seemed to agree, admitting in a decision involving competitive access that it is “important that the Commission revise its approach to promote competition and protect the interests of Canadians.” Andy Kaplan-Myrth is Vice-President, Regulatory and Carrier Affairs at TekSavvy, one of the few remaining independent competitors in Canada. He joins the Law Bytes podcast to discuss the current state of competition, the recent CRTC decision, and what this might mean for the Canadian market.

The much-anticipated Bill C-11 hearing opens this week at the CRTC. For the next three weeks, the Commission will hear from a wide range of stakeholders, including digital and legacy creators, Internet giants, telecom companies, and consumer groups. This hearing, which builds on an earlier consultation on registration requirements, will address issues that include mandated Internet streaming company contributions and discoverability requirements. What brought us to this moment and what lies ahead? This week’s Law Bytes podcast reviews the lengthy legislative process, the key players at the hearings, and how this consultation fits within the broader Bill C-11 framework.

Is the Canadian government’s Internet legislation constitutional? That question arose during the hearings on Bills C-11 and C-18, but has taken on a new urgency given the Supreme Court of Canada’s recent decision involving an Alberta challenge to federal environmental assessment legislation. With limits on federal powers back in the spotlight, the vulnerability of the legislation requires further examination. Philip Palmer is a former Justice lawyer who appeared before the House of Commons committee studying Bill C-11 to make the case that the law does not fall within the scope of federal powers. He joins the Law Bytes podcast to explain why and what it might mean for the Internet streaming and news laws.

Generative AI raises a host of interesting legal issues, but perhaps none will be more contentious than the intersection between copyright and services such as ChatGPT. The copyright questions apply both the creation of large language models used to train these systems as well as the copyright associated with outputs. These questions have sparked high profile class action lawsuits and government consultations on potential reform. Andres Guadamuz is a Reader in Intellectual Property Law at the University of Sussex and the Editor in Chief of the Journal of World Intellectual Property. He joins the Law Bytes podcast to explain the copyright implications of generative AI and to unpack the claims found in the copyright class action lawsuits.

After months of delays, the House of Commons Standing Committee on Industry and Technology has finally begun to conduct hearings on Bill C-27, which wraps Canadian privacy reform and AI regulation into a single legislative package. Last week, I appeared before the committee, making the case that the process is need of fixing and the bill in need of reform. The appearance sparked a wide range of questions from MPs from all parties. This week’s Law Bytes podcast takes you inside the committee hearing room for my opening statement and exchanges with MPs.