Casl and freedom_of_expression_-_final_lsuc_conference_slides

1. McCarthy Tétrault Advance™
Building Capabilities for Growth
CASL and Freedom of Expression –
The Writing Is on the Wall
17th
Biennial National Conference –
Communications Law and Policy
Daniel G. C. Glover
Partner
Direct Line: (416) 601-8069
E-Mail: dglover@mccarthy.ca
May 1, 2014

2. McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca 11756862
- It is “part of an international movement
towards giving individuals better control over
their personal information”
- Such control is intimately connected to
individual autonomy, dignity and privacy
- CASL is intended to protect consumers and
businesses against fraud and harassment in
the digital marketplace
No one disagrees with these
objectives.
CASL HAS SALUTARY OBJECTIVES
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3. McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca 11756862
But Is CASL
Sufficiently
Focused to
Survive a Charter
Challenge?
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4. McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca 11756862
¬ Rational Connection: Measures adopted must be
carefully designed to achieve the objective. They
must not be arbitrary, unfair or based on irrational
considerations.
¬ Minimal Impairment: The means should impair ‘as
little as possible’ the right or freedom.
¬ Proportionality: There must be a proportionality
between the effects of the measures and the
objective which has been identified as of ‘sufficient
importance’.
Onus rests on the party seeking to uphold the limitation
on a Charter right.
A Refresher on the Oakes Test
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5. McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca 11756862
- First head-on clash between Charter
right of freedom of expression and
“quasi-constitutional” right of privacy
- Both sides filmed people crossing a
picket line in West Edmonton Mall
- Union threatened to post photos on
“CasinoScabs.ca”, but Alta Privacy
Commissioner prohibited use
- PIPA struck down at Alta CA and SCC
on s. 2(b) expression grounds
Alberta v. United Food, 2013 SCC 62
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6. McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca 11756862
¬ It covers all PI of any kind, and provides no
functional definition of that term.
¬ The Act contains no general exception for
info that is personal, but not at all private.
¬ The exception relating “publicly available
information” is artificially narrow.
¬ There is no general exemption for
information used for free expression.
¬ There is no exemption allowing
organizations to reasonably use personal
information that is reasonably required in
the legitimate operation of their businesses.
Why Did Alta. CA Strike Down PIPA?
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7. McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca 11756862
“PIPA’s objective is increasingly
significant in the modern context...
However… these broad
restrictions … are
disproportionate to the benefits
the legislation seeks to promote.
In other words, ‘the Charter
infringement is too high a price to
pay for the benefit of the law’”
[SCC, para. 20]
SCC: PIPA Fails the Oakes Test
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8. McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca 11756862
What is of the utmost significance… is
that PIPA prohibits the collection, use, or
disclosure of personal information for
many legitimate, expressive
purposes... These purposes include
ensuring the safety of union members,
attempting to persuade the public not to
do business with an employer and
bringing debate on the labour conditions
with an employer into the public realm.
These objectives are at the core of
protected expressive activity. [para. 26]
SCC: PIPA Fails the Oakes Test
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9. McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca 11756862
“An analysis of the constitutionality of the statute calls for an
application of the Oakes test. On the other hand, it could be
argued that the statute is not unconstitutional per se, but that
the way it was brought to bear in this particular decision was
inconsistent with Charter values. From that perspective, a
Doré analysis is called for. Even if the statute is valid, Doré
confirms that the particular decision must be consistent
with Charter values.” United Food (2012 ABCA 130)
¬CASL could fall short in an absolute sense, or in the
way it is applied
¬Does the admin decision interfere with the Charter
guarantee no more than is necessary given the statutory
objectives? [Dore, 2012 SCC 12]
A Primer on the Charter and Admin Law
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10. McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca 11756862
“Over and above its intrinsic value as
expression, commercial expression which,
as has been pointed out, protects listeners
as well as speakers plays a significant
role in enabling individuals to make
informed economic choices, an important
aspect of individual self fulfillment and‑
personal autonomy.”
Ford v. Quebec, [1988] 2 S.C.R. 712
(also see Guignard SCC 2002)
The Value of “Commercial” Expression
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11. McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca 11756862
The Breadth of CASL
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12. McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca 11756862
CASL Sweeps Up Even Incidental
Commercial Messages
“A “commercial electronic message” is an electronic message
that, having regard to the content of the message, the hyperlinks
in the message to content on a website or other database, or the
contact information contained in the message, it would be
reasonable to conclude has as its purpose, or one of its purposes,
to encourage participation in a commercial activity…”
¬Only one purpose, even through use of hyperlinks, logos, contact
information, could be seen to “encourage participation in a
commercial activity” and thus violate CASL
¬Accessory liability for aiding or procuring violation means that
others’ speech can lead to liability.
¬Private right of action with multimillion dollar damages causes chill.
(Can’t rely on the restraint of the regulator!)
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13. McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca 11756862
The Problem of Legacy Consents
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14. McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca 11756862
PIPEDA Consents Not Grandfathered
Black’s Law Dictionary (Express Consent): “Consent that
is clearly and unmistakably stated” but…
¬ Consents under PIPEDA to send CEMs not necessarily
valid for the purposes of CASL
¬ CASL creates a harsher consent regime than PIPEDA
since “implied consents” are a list of closed categories
¬ Consents can’t be inferred by conduct as in Australia or
New Zealand
¬ Pre-checked boxes considered anathema by the CRTC
¬ Consents can’t be “bundled” into a licence agreement
under CRTC Interpretive Guidelines, para. 16
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15. McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca 11756862
The Underinclusive EBR
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The “existing business relationship”
basis for implied consent has a
disproportionate effect on
manufacturers because it is
impossible to ascertain who on a
mailing list qualifies because goods
are sold through intermediaries.
¬As a result, and because “re-opt-
ins” have a low response rate,
mailing lists are being purged for
fear of liability.

16. McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca 11756862
CASL = MORE THAN MALWARE/SPYWARE
Applies to “computer programs” as meaning “data
representing instructions or statements that, when
executed in a computer system, causes the
computer system to perform a function”.
•Broad definition does not regulate invasive
computer programs, but all computer programs
•Parliament could have restricted operation to
“invasive function” programs (described in s. 10(5)
of CASL)
•Contrast to Irwin Toy (targeted limitation to narrow
class of actors)
•First act of its kind in the world
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17. McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca 11756862
CHILL UNDER CASL
9. It is prohibited to aid,
induce, procure or cause to
be procured the doing of any
act contrary to any of sections
6 to 8.
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18. McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca 11756862
So Is the Writing on the Wall?
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19. McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca 11756862
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