IT.CAN Newsletter – June 7, 2012

Equality Rights and Internet Access

The Federal Court of Appeal dealt with the issue of access to government information for the visually impaired by way of the internet with its decision in Jodhan v Canada (Attorney General), 2012 FCA 161 (no hyperlink available). The applicant was a legally blind consultant who ran a business that analyzes the accessibility of products and services for persons with special needs. She brought action against the Treasury Board, the Public Service Commission of Canada and Statistics Canada, alleging that the websites of the latter two were not accessible to the visually impaired, and that the former had not developed and enforced standards which ensured that all Government of Canada websites and online services were accessible for all individuals with visual impairments. She had been successful in the Trial Division in her action, obtaining a sweeping remedy over which the trial judge chose to retain supervisory jurisdiction. Although on appeal some aspects of the remedy were altered (including the supervisory aspect) the substance of her claim was upheld by the Federal Court of Appeal.

The evidence indicated that the government had adopted the Common Look and Feel (CLF) Standards for the Internet, which were meant to apply to all government departments with regard to web accessibility for persons with disabilities. These standards set out a number of “checkpoints”, ranking them in terms of priority. As the Court of Appeal noted:

30 Priority 1 checkpoints are basic, necessary requirements because if not met, "one or more groups of persons with disabilities will not be able to access content on the Web". Without Priority 2 checkpoints "one of more groups will find it difficult to access content on the Web". Priority 3 checkpoint may "prevent some groups from finding it 'somewhat difficult' to access website content." The Attorney General notes that "[i]t is common ground between the parties that a checkpoint failure does not necessarily make a web site inaccessible". Under the CLF Standard, all gc.ca websites must meet Priority 1 and 2 checkpoints. Departments may apply to Treasury Board for exemption, if need be.

Evidence at trial showed that the government had issued a standard in 2000 requiring departments and agencies to design and program their websites so as to make them accessible to the visually impaired by 2001. An audit of forty-seven departments in 2007 found numerous failures by every department to meet the priority 1 and priority 2 checkpoints, and found serious violations on the part of twenty-two departments.

The problems arose because of technical conflicts between the standards and the programs being run by the departments. The visibly impaired are able to access the internet by using screen reader and/or self-voicing browser software. However, this assistive technology can only be used if a webpage is designed so that the technology can navigate and interpret the information encoded in the website. In particular, this prevents the use of rich internet applications which are commonly used by websites. The evidence from the applicant, for example was that, among other things: she was unable to create an online profile at www.jobs.gc.ca because pop-up windows, which blind users cannot navigate, kept popping up; she had difficulty accessing information on Statistics Canada and Service Canada websites because the information was only available in "pdf" format, which is not accessible to screen reader technology; and that the 2006 online Census return was only available to the visually impaired by expensive additional software. In addition, twenty-three government websites used ePass as a security channel to provide online applications, but the technologies used by these programs pose an access barrier to screen readers used by the visually impaired.

In essence, the Federal Court of Appeal noted, it was not possible to use the rich internet functions which were necessary for numerous online services and at the same time comply with the CLF standard, and so departments had chosen to ignore the standard.

The Court of Appeal upheld the trial judge’s conclusion that the applicant’s equality rights were violated. In doing so they particularly stressed the importance of the internet to daily life. The Attorney General had sought to overturn the trial judgement on the basis that the applicant had the right to government information and services, not the right to government information and services over the internet: accordingly, the argued, the inaccessibility of websites did not ground a section 15 claim. The Federal Court of Appeal disagreed with the substance of this claim:

129 The Attorney General says that effective access to government information and services, not online access, is the true benefit of the law. I have no difficulty going along with this proposition and thus I am prepared to agree with the Attorney General that the benefit of law is not, per se, online access to government information and services. However, I have great difficulty understanding how the benefit of access to government information and services can be truly enjoyed or exercised, in the present day, without access to that information by way of the Internet. In other words, depriving a person of access to government information and services by the use of one of the most important, if not the most important, tool ever designed for accessing not only government information and services, but all types of information and services, cannot constitute, in my respectful opinion, the provision of effective access to that information and those services.

The Federal Court of Appeal did adjust the remedy the applicant received, for example by removing the supervisory nature of the order and holding that a declaration was a sufficient remedy. However, they upheld the important part of her claim, that the failure of the government to make its websites accessible to the visually impaired was a violation of section 15 equality rights.

Cell Phones and Right to Counsel of Choice

In R v Veljovic, [2012] O.J. No. 2396 (no hyperlink available), the accused had been stopped for a roadside breath demand and was taken back to the station for a breathalyser test. Once there the accused indicated that he did wish to contact counsel, and indeed wished to contact counsel of his choice, which the trial judge noted was his right. The accused, however, did not know the name or contact information of his counsel of choice: that information was contained on his cell phone. The accused had been directed by the arresting officer to leave the cell phone on the seat of his vehicle when he was taken to the station, and the arresting officer had instructed another office to oversee the towing and to bring the accused’s belongings to the station afterward. The arresting officer did not wait for the accused’s cell phone to arrive so that he could determine how to contact counsel of his choice, and instead put the accused in contact with duty counsel. As it turned out when the other officer did arrive at the station he had not brought the accused’s cell phone in any case.

The trial judge found that the failure to hold off on the breathalyser test until the accused’s cell phone was returned to him was a violation of the accused’s right to counsel under section 10(b). In the circumstances, however, the trial judge found that the evidence should not be excluded.

In R v Pelich, 2012 ONSC 3027 (no hyperlink available) the police had made a one-to-one contact with the accused’s computer by means of Gnutella and had browsed its shared folder: on two occasions they downloaded files from it which contained child pornography. On the basis of having done so the police obtained a search warrant, which they executed. In the course of doing so they discovered child pornography on CDs and DVDs in the accused’s apartment.

That warrant authorized them not only to search the accused’s computer but also CDs, DVDs or other media storage devices. The accused conceded that the Information to Obtain the warrant properly give reasonable grounds to believe that the accused had downloaded child pornography and therefore that a warrant to search his computer could validly be issued. However, the accused argued that there were no grounds to believe that external storage devices existed or that a search of those devices would afford evidence, and so he sought severance of the warrant to exclude the authority to seize CDs and DVDs. At trial, the officer conceded that he had no evidence child pornography was being downloaded onto CDs but argued that “seizing a computer that contains a CD drive and leaving behind a CD would be like seizing a camera and leaving behind any film” (para 20).

The trial judge concluded that the police were not on a fishing expedition, and that given they were searching for child pornography which the accused was sharing online, it was reasonable to search computer media located near the computers. Accordingly he found the portion of the warrant authorizing a search of other media to have been properly issued.

RIM wins BBM trade-mark fight against BBM Canada

BBM Canada is the registered owner of a family of “BBM” trade-marks, which it has used in association with measuring the effectiveness of advertising. When Research In Motion Limited sought to register the term “BBM” in association with its very popular BlackBerry Messenger software, BBM Canada commenced an opposition to prevent RIM’s application. In the Federal Court, in BBM Canada v. Research In Motion Ltd., [2012] F.C.J. No. 613 (hyperlink not available), BBM Canada argued that the mobile device manufacturer’s mark was confusing with BBM Canada’s family of marks, arguing that there was an overlap between the associated services in advertising and marketing. This is particularly the case, BBM Canada argued, where RIM provides services such as podcasting of broadcasting agencies linked to BBM Canada. BBM Canada also pointed to some instances of actual confusion. BBM Canada also argued that there had been actual passing off and deprecation of its goodwill associated with its registered BBM mark.

The Court dismissed the application brought by BBM Canada. The Court concluded that BBM Canada was not entitled to a monopoly beyond its specific brand of broadcast measurement services within the broadcasting and advertising industries. Despite the previous registration of BBM Canada’s marks and their long-standing use, the scope of their use was limited. This does not conflict with or overlap with RIM’s use of the BBM mark. Confusion was found to be unlikely. With regard to the allegation of passing-off, BBM Canada did not show that RIM intentionally or negligently misled consumers into believing its business originated with BBM Canada. There was no evidence that BBM Canada had lost business or any goodwill from among its members in the advertising and broadcasting industries as a result of RIM's activities. As a result, the application was dismissed.

E-mail defamation considered by BC Court

In Michie v Guthrie Waters, 2012 BCSC 793, a case rooted in an acrimonious family law proceeding, the British Columbia Supreme Court considered a claim of defamation by e-mail. The husband claimed that his wife had defamed him and assisted another person to defame him via e-mail. The husband had been the subject of allegations of financial fraud, highlighted in a periodical article in Switzerland, which gave rise to a case of criminal libel in the Swiss Courts. The wife was found to have contacted the author of the article, seeking ammunition to use against him in the divorce proceeding. The husband claimed that the e-mail was defamatory. In addition, an unknown person sent an e-mail to the parents of children on a sports team that the plaintiff coached strongly alluding to the supposed fraudulent activities of the plaintiff.

The e-mail sent by the wife to the author of the Swiss article included the following statement: “I am directly involved with a number of people Mr. Michie has caused a great deal of pain and am trying to bring some justice to this situation here in British Columbia Canada.” The Court found this to be defamatory:

25 The inferential meanings and legal innuendo arising from the Nov. 1 e-mail would lower the plaintiff's reputation in the estimation of ordinary, reasonable members of society generally or expose the defendant to contempt. Furthermore, the inferential meaning that the plaintiff had engaged in fraud would be damaging to the plaintiff's reputation. In my view the contents of the Nov. 1 e-mail are defamatory.

The defendant, however, claimed the defence of privilege, arguing that the e-mail was sent in the course of developing her family law case. The Court dismissed this defence:

31 As I do not consider the Nov. 1 e-mail to relate to the parties' matrimonial proceedings, I do not accept the defendant's position that it is cloaked with the protection of qualified privilege. The defendant herself acknowledges that she worded the e-mail in a manner that would not disclose that she was an ex-wife. The wording she chose, as I have said, would lead the reader to understand that the plaintiff had been involved elsewhere in fraud as described in the article in Bilanz. This is not something that the defendant would have known to be true. I do not consider that qualified privilege should protect the comments of the defendant in the circumstances.

With respect to the e-mail that was distributed to the sports team parents, the Court was not able to infer that the spouse had been the person behind it.

In the result, the Court elected to award only nominal damages in the amount of $1.

Federal and Ontario Privacy Commissioners issue annual reports for 2011

In the first week of June, both the Privacy Commissioner of Canada and the Information and Privacy Commissioner of Ontario tabled their annual reports for 2011.

The Federal Commissioner’s report on PIPEDA, the private sector privacy law, focused on her three particular areas of emphasis for the three-year renewal of her term: (a) youth privacy, (b) informed privacy decisions and (c) service delivery. With respect to youth privacy, the Commissioner simultaneously released a graphic novel focused at teenagers to encourage more savvy and privacy-aware usage of social media. On the service delivery front, the Commissioner highlighted that 2011 saw a 35% increase in complaints, but her office has managed to reduce the clearance time for such complaints significantly.

The Information and Privacy Commissioner of Ontario’s report continued Ann Cavoukian’s long-standing opposition to federal “lawful access” legislation, and highlighted the increasing adoption of “Privacy by Design” as a methodology for embedding privacy protection in products and services. She also focused on privacy engineering and discussed her office’s work with hospitals to assist them with being included in the access regime under the province’s freedom of information legislation.

This newsletter is intended to keep members of IT.CAN informed about Canadian legal developments as well as about international developments that may have an impact on Canada. It will also be a vehicle for the Executive and Board of Directors of the Association to keep you informed of Association news such as upcoming conferences.

If you have comments or suggestions about this newsletter, please contact Professor Robert Currie, Director of the Law & Technology Institute, at robert.currie@dal.ca.

Disclaimer: The IT.CAN Newsletter is intended to provide readers with notice of certain new developments and issues of legal significance. It is not intended to be a complete statement of the law, nor is it intended to provide legal advice. No person should act or rely upon the information in the IT.CAN Newsletter without seeking specific legal advice.

© 2012 by Robert Currie, Stephen Coughlan and David Fraser. Members of IT.CAN may circulate this newsletter within their organizations. All other copying, reposting or republishing of this newsletter, in whole or in part, electronically or in print, is prohibited without express written permission.

Le présent bulletin se veut un outil d´information à l´intention des membres d´IT.CAN qui souhaitent être renseignés sur les développements du droit canadien et du droit international qui pourraient avoir une incidence sur le Canada. Le comité exécutif et le conseil d´administration de l´Association s´en serviront également pour vous tenir au courant des nouvelles concernant l´Association, telles que les conférences á venir.

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