IT.CAN Newsletter – October 3, 2012

Child Allegedly Bullied via Facebook Can Proceed Anonymously: SCC

In A.B. v. Bragg Communications Inc., the Supreme Court of Canada considered an appeal of lower court findings from Nova Scotia that a child litigant could not proceed anonymously with defamation proceedings. The child, A.B., had discovered a Facebook profile, falsely portrayed as hers, that made scandalous and sexual remarks about her. Through her father/litigation guardian she made a motion to have the ISP in question disclose the IP address from which the profile had been posted, as well as to have her identity anonymized in the proceedings and a publication ban placed on the content of the profile. While the ISP agreed to consent to an order to this effect, the motion was opposed by media organizations. The motions judge granted the disclosure order but dismissed the motion to proceed anonymously and for the publication ban, on the basis that there was insufficient evidence of harm to overcome the open court principle. These findings were upheld by the Court of Appeal.

Writing for a unanimous Court, Justice Abella allowed the appeal in part, ordering the anonymization of the proceedings and a publication ban on any information that could identify the child plaintiff. The balance to be struck, she ruled, was between the well-established importance of the open court principle, which is “tenaciously embedded in our jurisprudence” (para. 13), and the child’s privacy—specifically “her privacy from the relentlessly intrusive humiliation of sexualized online bullying” (para. 14). The case law regarding the kinds of harm that are capable of justifying limits on the open court principle indicates that such harm can be found not just in the evidentiary record about the individual litigant, but in such “objectively discernable harm” as could be found by operation of “reason and logic” (paras. 15-16). Justice Abella found considerable support for “recognition of the inherent vulnerability of children” in Canadian statutes and international law, noting “the law attributes the heightened vulnerability based on chronology and not on temperament” (para. 17), and thus an individual child litigant need not establish anything beyond her age to receive the protection.

Citing the Report of Nova Scotia’s Task Force on Cyberbullying and its attention to the emotional harm and loss of self-esteem experienced by victims, Abella J. held that it is “logical to infer that children may suffer harm through cyberbullying.” She quoted the following passage on the specific issue of cyber-bullying:

The immediacy and broad reach of modern electronic technology has made bullying easier, faster, more prevalent, and crueller than ever before.

… cyber-bullying follows you home and into your bedroom; you can never feel safe, it is “non-stop bullying”.… cyberbullying is particularly insidious because it invades the home where children normally feel safe, and it is constant and inescapable because victims can be reached at all times and in all places.

The anonymity available to cyberbullies complicates the picture further as it removes the traditional requirement for a power imbalance between the bully and victim, and makes it difficult to prove the identity of the perpetrator. Anonymity allows people who might not otherwise engage in bullying behaviour the opportunity to do so with less chance of repercussion.…

… The cyber-world provides bullies with a vast unsupervised public playground… (para. 22)

Noting that the Court had found in earlier cases that privacy encourages victim reporting, Justice Abella took judicial notice of the fact that “absent a grant of anonymity, a bullied child may not pursue responsive legal action” (para. 24), which would harm both the child and the overall administration of justice—particularly, as with this case, in instances of sexualized cyberbullying. The relative insignificance of the child’s identity did not do significant harm to the open court principle, since the media was still free to attend and report upon the proceedings. Accordingly, a publication ban should issue only on any information which would identify the child and the open court principle would prevail.

ONCA Rules No Reasonable Expectation of Privacy in Subscriber Information

In its long-awaited decision in R. v. Ward, the Ontario Court of Appeal directly addressed the controversial issue of what expectation of privacy resides in subscriber information held by ISPs, and in particular whether the police’s practice of obtaining subscriber information without a warrant was a violation of s. 8 of the Charter. During a child pornography investigation the police obtained information which led them to request the accused’s subscriber information (here, name and address) from his ISP, Bell Sympatico (“Bell”). Using the subscriber information and other information gathered during the investigation, the police obtained a search warrant for the accused’s house, where they discovered and seized over 30,000 images and 373 videos containing child pornography. The accused argued unsuccessfully at trial that the obtaining of the ISP had violated his s. 8 rights by breaching his reasonable expectation of privacy, that the ITO to obtain the warrant was insufficient, and that the evidence should have been excluded under s. 24(2). These motions failed and he was convicted.

Writing for a unanimous panel, Justice Doherty began by addressing the “technical” aspects of the case, with a description of the functions of ISPs and the nature of an IP address, noting that ISP account information does not necessarily prove who was accessing the internet by way of the account or what computer they were using. He further noted that IP addresses tend to be static and not constant, in the sense that they are re-assigned by the ISP with each connection, but that (as in this case) the ISP can record information linking IP addresses to a given account at a particular time.

In this case, a German child pornography investigation had turned up a particular IP address belonging to Bell. The police requested subscriber information under a protocol between Bell and the police whereby police requests would indicate that they were investigating a Criminal Code offence and making a request under s. 7(3)(c.1) of PIPEDA, which permits organizations to disclose normally confidential information about an individual at the request of law enforcement authorities who indicate that they have lawful authority to investigate and are seeking to “enforce any law of Canada.” Justice Doherty also noted s. 487.014(1) of the Criminal Code, which permits individuals to voluntarily disclose information upon a request by police, though the Court held that none of this created a further search power in the Crown; it was relevant to the “reasonable expectation of privacy” analysis nonetheless. The service agreement between Bell and the accused provided that Bell was entitled to disclose information to the police as requested.

Reviewing the s. 8 jurisprudence, Justice Doherty noted that if the accused had a reasonable expectation of privacy in the material then s. 8 was engaged, even if the police did not characterize the evidence-gathering as a “search and seizure.” He agreed with the accused that obtaining the information was capable of revealing details about the accused’s life but found that the evidence did not indicate that this particular information could provide “an electronic roadmap of [his] travels on the internet” (para. 69). Even though the accused’s activity on the German website was in some sense a public activity, s. 8 protected against state intrusion on public activity in situations where some anonymity was to be expected, and even willing disclosure of related information to third parties did not necessarily destroy the reasonable expectation of privacy. The ultimate question was “whether the appellant had a reasonable expectation that he could anonymously access the internet on his computer without the state, with the cooperation of the…ISP, being able to find out what he accessed” (para. 88).

The Court held that the claim was properly framed as one to privacy in information, but that it was only incidentally tied to the accused’s residence, and the information was that obtained from a third party who had gotten it from the accused under a contract. The information sought was certainly that which could tie the accused to particular activities, and the evidence indicated that the accused had clearly subjectively wished to keep his internet activities (as opposed to his name and address by themselves) private. However, finding objective expectation of privacy required taking into account Bell’s interest in preventing misuse of its services and willingness to cooperate with law enforcement. Ultimately, “the ‘reasonable and informed person’… would view a customer’s reasonable expectation of privacy in his or her subscriber information to be circumscribed by the service provider’s discretion to disclose that information to the police where it was both reasonable to do so and a PIPEDA compliant request for disclosure had been made by the police” (para. 100). This was underscored by the narrow and focused nature of the information requested by the police and the terms of the service agreement.

Accordingly, the accused had no reasonable expectation of privacy in the information. The ITO was also held to have been sufficient, and thus the search was constitutional. The appeal was dismissed.

Anton Piller Order for Electronic Documents

The Ontario Superior Court of Justice has issued an Anton Piller order regarding the use of confidential information by former employees in Johnson v. Helo Enterprises Inc. The applicant, MAQ Sonar, was an established company with clients around the world, and it was (in cooperation with the National Research Council) developing new digital sonar technology for the design and manufacturing of a digital sonar device. The defendants were former employees, all of whom had signed confidentiality and non-disclosure agreements, and all of whom were now working for a competing company which some of them had participated in establishing, while still employed by MAQ Sonar.

Among the evidence in support of the Anton Piller order was an MSN chat conversation between two of the employees, one of whom had already left MAQ Sonar. In part it was:

Ward: This copying is taking all day. Just the (2) Engineering folder. Over 12GBs.

Johnson: Yes I know.

Ward: Jim’s hovering around too. Keeps asking questions but then scans my desktop. It’s all in the background so I’m safe. It’s a little uncomfortable tho.

Unsurprisingly this evidence was found to create a strong prima facie case that the defendants had copied the confidential information and had breached the confidentiality agreement. The application judge also relied on this evidence in concluding that the fourth requirement for an Anton Piller order, that there was a real possibility that the defendant may destroy the material before any court discovery proceedings could be taken. The judge noted that the defendants had already acted dishonestly and that “[d]igital copies of engineering files could very easily be moved and deleted or hidden.” Accordingly there was a real risk that the evidence would be lost and so the Anton Piller order was granted.

Class Action Lawsuit over Sale of RAM

A class action lawsuit alleging price fixing in the Static Random Access Memory (“SRAM”) industry has been approved in Ontario, in Bratton v Samsung Electronics Co. Ltd. In particular the action alleges breaches of Part VI of the Competition Act, R.S.C. 1985, c C-34, civil conspiracy and tortious interference with economic interests. The class consists of all persons in Canada who purchased SRAM or products which contained SRAM between January 1, 1998 and December 31, 2005, other than Directors of Officers of the defendant corporations and persons who are already part of similar class actions in Quebec and British Columbia. The named plaintiff in the case had purchased a Blackberry during the relevant time period.

“Web Leakage” of Personal Information

The Privacy Commissioner of Canada has conducted a preliminary study, finding serious privacy concerns with some popular websites’ disclosure of users’ personal information to third-party sites, including to advertisers. The phenomenon, known as “web leakage”, was observed in five of the twenty-five sites tested, and there were concerns over the practices of six other sites.

The Commissioner noted that web leakage occurred when sites send electronic requests for an advertisement to be placed on a page that has just been opened by the user. The process of sending this “ad call” to the third party advertiser might include personal information about the subscriber. Similarly, in some cases websites set a cookie in a user’s browser, which can contain personal information. That cookie is sometimes shared with a third party, resulting in disclosure of that personal information. It was not apparent from the research the Commissioner has done to date whether this transfer of personal information was being done intentionally or unintentionally, but in some cases it was in violation of the websites stated privacy policy.

The Commissioner did not name the twenty-five websites which had been studied. Her office has sent letters to the eleven websites over which there were concerns, seeking information about their practices and how they will ensure compliance with privacy law. She indicated that the study was merely meant to provide a snapshot of the Canadian context, but she indicated that all the companies tested had a high volume of Canadian traffic, involved the input of personal information, and used third-party marketing tools for direct advertising or other purposes.

The Commissioner also presented the results of the study in chart form.

Web-based Proof of Identity for Service of Documents

The Ontario Superior Court of Justice granted an interim injunction in Busseri v. John Doe (no hyperlink available), relying on inferences drawn from the nature of activity on the web both to establish the identity of the defendant in the case and to justify the injunction. The applicant was the CEO of a publicly traded corporation called Route 1: the website Stockhouse.com maintains bulletin boards devoted to discussion of individual corporations, one of which dealt with Route 1. A Stockhouse.com user named simonquinn had posted a number of allegations about Busseri on Stockhouse.com, and Busseri brought an action for defamation and applied for an interim injunction.

The first issue in the application was whether Busseri had actually served notice on the person who had made the postings and against whom the injunction was brought. The evidence was that Busseri had received emails from princebrucelawrence@yahoo.com which contained text identical to messages posted by simonquinn. Further, simonquinn had posted texts of emails on the Stockhouse.com which he claimed he had emailed to Busseri. There was also technical evidence connecting posts on Stockhouse.com with the email address princebrucelawrence@yahoo.com, and so the application judge concluded that simonquinn and the user of the email address princebrucelawrence@yahoo.com were the same person.

The IP address associated with princebrucelawrence@yahoo.com was registered to Kim Rathburn of 177 1/2 Pitt Street, St. John, New Brunswick. She indicated that she has a wireless Internet router which until recently had not been password protected. The application judge then noted that a Google search of princebrucelawrence@yahoo.com revealed a posting with that email address in a classified ad website for Saint John, New Brunswick, and that a search of Canada411.ca showed a Bruce Prince living at 177 Pitt Street in Saint John, New Brunswick.

Finally, counsel for Busseri sent several messages to Prince at princebrucelawrence@yahoo.com, requesting his address for service and informing him of proposed court dates. Prince replied in ways which were, as the application judge noted “to put it mildly, dismissive of this Court's process”: specifically, Prince repeatedly replied “go fuck yourself”, and referred to posting on Stockhouse.com. The application judge concluded that Prince was thereby effectively identifying himself as simonquinn, and therefore concluded that proper service had taken place.

The application judge also found that he had jurisdiction to grant the interim injunction, and did so. The tort was partly committed in Ontario, and that was where Route 1 carried on business. The statements made were defamatory, and the fact that they had been posted on the internet and would otherwise continue to be met the test for irreparable harm. The trial judge noted that the evidence showed the postings had been viewed over 500,000 times and had prompted considerable further discussion, as well as causing shareholders to contact Busseri. As a result the interim injunction was granted.

Facebook Jury Problems in Kentucky

The Kentucky Supreme Court has ordered a Circuit Judge to hold a hearing into whether a conviction by jury in a murder case was tainted by the fact that two jurors had “liked” a Facebook page created in the victim’s memory by her mother. The Supreme Court also directed an inquiry into whether the jurors had made misstatements about their relationship to the case when the jury was empanelled, and if it was found that the jurors should have been excluded from the panel then a new trial would be required. The case is somewhat reminiscent of the murder trial of Fred Prosser in Moncton, NB, where a mistrial was entered after the victim’s family discovered that a juror belonged to a Facebook group which was hostile to the accused.

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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