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  • 7 Mar 2019 1:45 PM | Anonymous

    Settlement against Devumi LLC prohibits it from further sales of online accounts, followers, likes and endorsements 

    In a press release issued on January 30, 2019, the Attorney General of New York announced that following an investigation of Devumi LLC, it had entered into a settlement that puts an end to the company’s sales of fake activity from fake social media accounts. 

    The company was found to have engaged in the sale of fake followers, “likes” and views on Twitter, YouTube, LinkedIn, SoundCloud and Pinterest using fake activity from false accounts (both bots – computer operated accounts – and sock-puppet accounts – one person pretending to be multiple other people). From the Attorney General’s press release:

    Devumi LLC and related companies owned by German Calas, Jr. – including DisruptX Inc.; Social Bull Inc.; and Bytion Inc. (collectively, “Devumi”) – sold fake followers, “likes,” views and other forms of online endorsement and activity to users of social media platforms. Devumi supplied the fraudulent activity using bot and sock-puppet accounts. These bot and sock-puppet accounts falsely pretended to express the genuine positive opinions of real people. In some instances, Devumi supplied fake accounts that copied real people’s social media profiles without consent, including their name and picture.

    In addition, Devumi sold endorsements from social media influencers without disclosing that the influencers had been paid for their recommendations. This is especially troubling when considering that the opinions of influencers can have particularly strong influence over the reputation and sales for any product, company, service or person they endorse.

    These business practices deceived and attempted to affect the decision-making of social media audiences, including: other platform users’ decisions about what content merits their own attention; consumers’ decisions about what to buy; advertisers’ decisions about whom to sponsor; and the decisions by policymakers, voters, and journalists about which people and policies have public support.

    Devumi’s practices deceived some of the company’s own customers who mistakenly believed they were paying for authentic endorsements, while many other Devumi customers knew they were buying fake activity and endorsements. Devumi also deceived the social media platforms, which have policies prohibiting fake activity.

    Devumi ceased operations in 2018 after the AG launched her investigation, which caused a major decline in sales. The settlement did not address whether the customers did anything illegal. Further commentary can be found here:,-Followers-Yield-Real-Legal-Action.

  • 7 Mar 2019 1:45 PM | Anonymous

    Review will examine choice and affordability in Canada’s mobile wireless market

    On February 28, 2019, the CRTC announced a review of the state of the mobile wireless market in Canada to determine whether action is required to improve choice and affordability for Canadians. They are seeking feedback from the public on a variety of matters, including whether mobile virtual network operators should have mandated access to national wireless provider networks until they can establish themselves in the market, and whether regulatory measures are needed to facilitate the deployment of 5G network infrastructure.

    At the same time, the CRTC issued its Notice of Consultation CRTC 2019-57, a notice of hearing for a public hearing on 13 January 2020 looking at competition in the retail wireless service market, the wholesale mobile service regulatory framework (roaming and mobile virtual network operator), and the future of mobile wireless services in Canada (especially in regard to reducing barriers to infrastructure deployment). They provide 16 questions for Canadians to provide their feedback on, all of which can be found here:

  • 7 Mar 2019 1:44 PM | Anonymous

    Finds that Facebook abused its position of dominance in the German market by combining collected user data improperly

    On February 6, 2019, the German Federal Cartel Office (the “Bundeskartellamt”) issued a decision finding that Facebook had abused its position as the dominant company in the market for social networks by collecting user data outside the Facebook platform (via apps like WhatsApp, Snapchat, etc.) and assigning this data to its users. This amounted to unlawful collection and use of user data. The President of the Cartel Office commented:

    With regard to Facebook’s future data processing policy, we are carrying out what can be seen as an internal divestiture of Facebook’s data.In future, Facebook will no longer be allowed to force its users to agree to the practically unrestricted collection and assigning of non-Facebook data to their Facebook user accounts. The combination of data sources substantially contributed to the fact that Facebook was able to build a unique database for each individual user and thus to gain market power. In future, consumers can prevent Facebook from unrestrictedly collecting and using their data.The previous practice of combining all data in a Facebook user account, practically without any restriction, will now be subject to the voluntary consent given by the users. Voluntary consent means that the use of Facebook’s services must not be subject to the users’ consent to their data being collected and combined in this way. If users do not consent, Facebook may not exclude them from its services and must refrain from collecting and merging data from different sources.

    A good write-up on the decision and its context can be found here.

  • 7 Mar 2019 1:43 PM | Anonymous

    Law clerk affidavits attaching technical reports as exhibits insufficient to properly balance the interests of rights holders and internet users under the notice-and-notice copyright regime

    As the Federal Court continues to settle outstanding questions related to the notice-and-notice regime and Norwich Orders, while a number of rights holders seek information related to the customers of internet service providers. In this case, ME2 Productions, Inc. v. Doe, TekSavvy brought an appeal of a decision rendered by a Federal Court Prothonotary sitting as a case management judge (the “CMJ”) in which the CMJ granted the application for a Norwich order, requiring TekSavvy to provide customer names and addresses to the applicant. The main issue on the appeal was whether the applicant had brought sufficient evidence – or the best evidence – to support its request for a Norwich order.

    The main evidence brought by the applicant was in the form of affidavits sworn by law clerks from the plaintiff’s lawyers’ law firm. Attached to one of those affidavits was a solemn declaration signed by an employee of a company called Maverickeye, which performs services to detect and log online sharing of content. That process and the resulting report is described by the Court:

    [10] The Plaintiffs are movie production companies that own copyright in several films. They are concerned about illegal distribution of their films, so they hired a company called Maverickeye UG (Maverickeye) to monitor the Internet for illegal sharing of their films. The Plaintiffs received a report from Maverickeye about suspected illegal downloads which included the date and time of the activity together with the Internet Protocol (IP) addresses associated with the downloads. These IP addresses were correlated to numbers that were held by several different Internet Service Providers (ISPs). The IP addresses at issue here had been allocated to TekSavvy – each ISP is allocated a bank of IP addresses, and these are available for search, so it was possible for Maverickeye to link a particular IP address with a specific ISP. 

    [11] It was not possible, however, for Maverickeye to link the particular IP address with the name of the individual customer. That information is held by the ISP and is not otherwise available for search by other parties. Pursuant to the notice and notice regime established by the Copyright Modernization Act (described more fully below), the Plaintiffs sent notices to TekSavvy alleging that its customers infringed their copyright and providing the relevant information as to the date and time of the alleged illegal activity, as well as the associated IP address. Under the regime, TekSavvy had to forward such notices to its subscribers, and to retain certain information about the subscribers and their activity.

    On the appeal, TekSavvy attacked the evidence put forward by the plaintiffs, arguing that the law clerks affidavits are improper hearsay, the affidavits do not comply with the requirements of the Federal Courts Rules because they do not set out the basis for the deponents’ belief in their truth and finally the declaration from the Maverickeye employee is expert evidence which was also not in compliance with the requirements set out in the Rules.

    [109] In this case, TekSavvy says that the evidence is inadequate: the key evidence that is found in the Arheidt Declaration is hearsay which cannot be subject to cross-examination since it is simply an exhibit to the affidavits. This is exactly the type of evidence which was rejected in BMG, which remains good law. Further, it contends that the affidavits provide no basis to explain why the law clerks adopt the Arheidt Declaration or believe it to be true and that it is opinion evidence which is not properly submitted in accordance with the Rules or jurisprudence. TekSavvy argues that before the Court can grant extraordinary relief such as a Norwich order, it must demand better evidence from copyright owners.

    The Court noted that this type and configuration of evidence has been routinely accepted in similar proceedings and has been accepted as a basis for the issuance of a Norwich order. The Court noted, at paragraph 103, that “[t]his is a case of first impression: there is no binding authority directly on point nor any decisions of this Court, so I must step back and assess it from first principles, guided by the decision in Rogers Communications.”

    Ultimately, the Court found that the CMJ had erred is relying on the evidence put forward in this manner. Decision-making in cases such as these need to balance the interests of the rights holders against the rights of the individual internet users who may be prejudiced by disclosures under Norwich orders. 

    [121] First, the affidavits of the law clerks do not meet the requirements of Rule 81.To put it bluntly, there is absolutely no indication of the basis for the statement that the law clerks swearing the affidavits adopt the Arheidt Declaration or believe it to be true. Nor is there any explanation as to why the best evidence is not available. The fact that they work in the “copyright enforcement group” of the law firm representing the Plaintiffs may be relevant, in that they may have gained knowledge and expertise about how Maverickeye and its software function and why their reports should be viewed as accurate, but this is not explained. Nor is there any explanation as to why Mr. Arheidt did not swear an affidavit in these matters. 

    [122] Second, the key evidence in support of the granting of the Norwich order is set out in the Arheidt Declaration, but it is simply an exhibit to an affidavit. It is therefore beyond the reach of cross-examination. 

    [123] This evidence is simply not good enough. I find that before granting a Norwich order better evidence must be filed. I have noted earlier the obligation on the copyright owner to provide as accurate information as is possible in the circumstances. To this I would add that the key evidence of alleged copyright infringements must normally be set out in an affidavit, sworn either by a person with direct personal knowledge of how the evidence was gathered, or by someone who can explain why such evidence is not available and why they have reason to believe the truth of the material they are submitting.

    The appeal was allowed and the Norwich order was quashed, but the plaintiffs were granted leave to apply again with better evidence in accord with the Court’s decision.

  • 7 Mar 2019 1:42 PM | Anonymous

    Alleged confidentiality agreement found not to have been completed because email attachment not opened

    In Safety First Contracting (1995) Ltd v. Murphy, Justice Bill Goodridge of the Supreme Court of Newfoundland and Labrador presided over the trial of an action for breach of a confidentiality and non-competition agreement, breach of confidence, and wrongful conversion of trade secrets. The plaintiff company, Safety First, alleged that the defendant, its former operations manager, had breached a confidentiality and non-competition agreement that was part of his terms of employment. It was common ground that the defendant had left his job with Safety First and accepted a virtually identical management position with the main competitor company, Hi-Vis, three weeks later. The defendant denied that there was any confidentiality/non-competition agreement and that he had copied or shared any trade secrets.

    The primary dispute was whether had, indeed, been a confidentiality/non-competition agreement entered into by Safety First and Murphy at the point at which Murphy’s employment was finalized. Justice Goodridge found that while Safety First had intended there to be such an agreement, it was not completed. One of Safety First’s witnesses testified that there had been a written agreement executed, but that it had been “lost or stolen.” Justice Goodridge was dubious about this claim, particularly given that the company had a policy of duplicating all documents in a DropBox folder for viewing by the head office in Halifax, despite the company’s testimony that the policy had changed because the St. John’s office had been given more administrative autonomy (of which, in any event, Murphy was not aware). Safety First’s account of what matters were discussed with Murphy during and after his job interview was affected by witness credibility problems and inconsistent evidence about administrative practices.

    Accordingly, the central factual matter was whether Murphy had received and viewed the agreement by email, as it was attached to an email sent to him by a Safety First official on March 5, 2015. That email read, in part, “Please find attached your acceptance and confidentiality letter,” but had two attachments: a letter containing the basic terms of employment and the confidentiality/non-competition agreement. Murphy testified that he saw only the first attachment, which he opened, signed and sent to the employer. He denied seeing the agreement. An account of the evidence followed:

    [27] There was evidence from computer experts, addressing whether the second letter (the confidentiality and non-competition agreement) was received and opened at Mr. Murphy’s inbox. None of the experts who testified could say with certainty whether both attachments on the March 5, 2015 email arrived at Mr. Murphy’s inbox. All experts agreed that anti-virus software does occasionally remove an attachment during transmission, and that the sender would have no way of knowing that this had occurred.

    [28] John Murphy, a technical specialist in IT security, testified that attachments to emails, or even single attachments on an email with multiple attachments, can be intercepted and not arrive at the intended recipient’s email account. Servers and desktop computers are designed to screen malware and spam. The screening technologies are not perfect and items can be quarantined or deleted without the sender or recipient knowing.

    [29] Craig H. Bennett, who manages Safety First’s email server, testified that he reviewed Mr. Murphy’s company email account -- -- and was of the view that neither attachment had been quarantined or deleted. He could see that a document of the same size, suggesting two separate documents, was received by Mr. Murphy on the Safety First email account. That evidence is not helpful because Mr. Murphy was not able to open attachments on the Safety First email account at that time. On the day the email was sent, Mr. Murphy was snowmobiling in a remote area of Newfoundland. He was using a hand held smart phone. He could reply to the email but he could not open the attachment. He forwarded the email to his two personal email accounts -- and Mr. Bennett had no way of determining if both attachments were received at Mr. Murphy’s personal email accounts.

    Justice Goodridge found that Murphy was unaware of the second document, and that even if it did arrive in one of his personal email accounts, his failure to open it was “inadvertent but…not unreasonable. The matter referenced in the email from Safety First suggested that there was only a single letter attached, and there was no mention in the body of the email about non-competition. There was nothing that would signal to Mr. Murphy the need to search for a second attachment.” Accordingly, there was no agreement in place.

    Justice Goodridge went on to find that, even in the absence of an agreement, certain common law duties did apply to prevent employees from taking away confidential information. Again, however, the employer’s claim was hamstrung by questionable evidence about administrative practices regarding electronic document access. Corporate documents (including trade secrets) were kept on three different DropBox folders, and the company witnesses were inconsistent about which folders Murphy had access to; Murphy, for his part, testified that he had only ever accessed sub-folders relevant to his actual tasks, and the judge found this account to be more credible.

    The employer’s only direct evidence that Murphy had actually stolen trade secrets came from a witness, Little, who was retained by Murphy to do contract work at Hi-Vis after Murphy began working there. She alleged to have seen him bring up a Safety First safety manual from a thumb drive on his computer, and that she had managed to surreptitiously send herself a copy of that manual using Murphy’s computer via email (the email was produced in evidence). However, Justice Goodridge found Little to be “loose with the truth” and concluded that she had been engaged in some kind of self-appointed sting operation for Safety First, for whom she hoped to do contract work, and rejected her evidence. In the final result, the employer’s claims were dismissed.

  • 21 Feb 2019 1:49 PM | Anonymous

    Israeli court rules that Facebook “likes” do not constitute publication for the purposes of defamation, though “shares” might

    As reported on the Global Legal Monitor blog, in the recent case of Needaily Telecommunications Ltd. v. Yoel Shaul et al., an Israeli District Court examined the issue of whether “liking” and “sharing” material on Facebook can constitute publication for the purpose of finding defamation. In the case itself, the plaintiff was a local weekly magazine, which sued the respondents in defamation. The respondents admitted having “shared” a post showing a copy of the magazine thrown in the garbage, accompanied by derogatory statements about the magazine. They also had “liked” a post with a photo that showed a dog urinating on the magazine, accompanied by statements regarding a boycott of the magazine.

    The court noted that the question of whether either mechanism constituted a “publication” for defamation purposes was one of first instance in Israeli law, and that the matter did not appear settled in the defamation law of other countries, though there was a tendency to treat a “share” as publication but not a “like.” This was the ultimate position of the District Court in the case before it, essentially because “sharing” imports a measure of intention on the part of the user to circulate the content shared to other people. Liking, by contrast, simply triggered a Facebook algorithm that would potentially expose the content to others but without any particular intention on the part of the user who clicked the button, or even knowledge that it would be circulated—and in particular, no control over it. In reaching this conclusion, the court relied on evidence that Facebook itself has created a mechanism for reporting shared material, but not for “likes,” leading to the inference that the corporation itself takes the view that “liking does not constitute a new publication of defamatory content and, accordingly, does not have any existence beyond the original post itself.” The respondent were held liable for the shared material.

  • 21 Feb 2019 1:48 PM | Anonymous

    Quebec employment tribunal upholds dismissal of employee who maligned employer on Facebook

    The recent case of Syndicat démocratique des salarié(e)s de la résidence St-Jude et La Résidence St-Jude (9210-9719 Québec inc.) (Vickyan Tardif) (2018 QCTA 593, hyperlink unavailable) illustrates a point well-known to employment lawyers: social media comments by employees can ground dismissal for cause. The grievor, Tardif, had been employed as a nursing assistant in a seniors’ residence, and expressed unhappiness with her working conditions on Facebook, referring to it as “l’Enfer” (Hell), making unflattering comments about managers and criticizing the behaviour and management abilities of the Director. She was dismissed for these comments because they violated her duty of loyalty to her employer as well as the organization’s policy forbidding discussion of employment matters on social media. An arbitral panel dismissed the grievor’s argument that her communications on Facebook were “private,” as this was inconsistent with the very nature of social media. While the infraction had been serious, the panel held that the overall trust relationship had not been violated, particularly given the grievor’s immediate deletion of the comments and apologies. It vacated the dismissal and imposed a 7-month suspension without pay in its place. (NB: this summary of this French-language decision is drawn from an English-language write-up on the decision that can be found here.)

  • 21 Feb 2019 1:47 PM | Anonymous

    Court rulings emphasize practicality, ubiquity of email communication

    While we are well past the days where expert witnesses were required when parties sought to lead email in evidence, this very universal (some would even say antiquated) mode of communication is still the subject of contention in various kinds of litigation. Recent case law suggests that Canadian courts are keen on the practical utility of email, particularly in situations where the underlying dispute is based around failure on the part of one party to communicate in a reasonable or timely manner.

    In The Owners, Strata Plan NW 2089 v. Ruby, Registrar Neilsen of the British Columbia Supreme Court presided over a petition by a New Westminster strata (condominium) corporation to: enforce a lien that had been entered against the unit owned by Ruby, in the amount of $4,532.33; or enforce sale of the unit if the lien was not discharged. There was an underlying dispute regarding payment for upgrades to elevators in the building, in particular whether commercial tenants would pay and in what amount. Ruby was employed as a tour manager and was most often away at least 6 months of the year, sometimes consecutively, and sometimes longer. He had regularly used email in order to communicate with the management of the corporation. He was aware of the dispute regarding the elevator upgrades but at all relevant times had the impression that no decisions had been made.

    In September and November of 2017 the corporation had sent letters to Ruby notifying him of a special levy on owners to pay for the elevator upgrades. Ruby was out of town and did not receive the letters. In December 2017 the corporation sent Ruby an email referring to the letters and informing him that they were commencing “forced sale proceedings.” Ruby responded immediately and offered to pay the special levy, but over the course of communications (this time by email) it was made clear that the court proceedings would still be brought unless he also paid “special legal costs” in amounts up to $2,700. He refused to pay these and the petition went ahead.

    Ruby provided substantial evidence that he had corresponded regularly with the corporation via email for well over a decade preceding this particular matter, and that in particular he had dealt with disputes regarding special levies by email on previous occasions. As the Registrar noted, the Strata Property Act provided for various means of communication between corporations and owners, including email, and in this case the corporation had not responded to Ruby’s evidence regarding past email communication. Regardless of the corporation’s policy preferring written communication, it was clear that there was a history of regular communication regarding strata matters by email, and there was no explanation from the corporation as to why they had “handed the matter over to their lawyers” (who, ironically enough, dealt with Ruby exclusively by email). The legal costs were held to be “unreasonable in their entirety” by the Registrar, who ruled:

    In my view, this entire proceeding could have been avoided had the petitioner sent a single email to the respondent, demanding payment of the special levy, as it had in the past, before handing the matter over to their lawyers and incurring legal costs…Upon receipt of the first email demanding payment of the special levy the respondent promptly acknowledged his liability and agreed to pay. He did not agree to pay legal fees which he felt were needlessly incurred. Regretfully, he was not permitted to pay the special levy unless it was accompanied by full payment of the legal fees claimed. The escalating claim for legal fees became a club to cow the respondent into submission.

    The claim for costs was disallowed and Ruby received his costs for the hearing.

    Unreasonable email use against the background of a petty dispute also featured in Hemming v JAZZ.FM 91 Inc., in which a dissident group among the members of a small non-profit organization appears to have been seeking a meeting of the entire membership. It requested contact information for the members, but the organization chose to withhold email addresses from disclosure, even though it was “the primary means of notice used to contact the overwhelming number of members.” Justice Dunphy of the Ontario Superior Court ordered that the list of email addresses be produced, chiding the organization for a practice “clearly adopted to frustrate the applicants” and which placed “needless/pointless obstacles in favour [sic] of communication.” Having cited the needlessly adversarial nature of the dispute (the judge commented in oral remarks that there were three lawyers on each side of the matter), partial indemnity costs in the amount of $20,000 were awarded against the non-profit. [Editors’ note: we can’t believe it, either]

  • 21 Feb 2019 1:46 PM | Anonymous

    Students reasonably expecting not to be secretly videotaped in school for sexual purpose

    The Supreme Court of Canada has elaborated on the voyeurism offence in section 162(1) of the Criminal Code with its decision in R v Jarvis. That provision makes it an offence to surreptitiously observe or record a person who is in circumstances that give rise to a reasonable expectation of privacy, including that the recording was done for a sexual purpose. In Jarvis itself, the accused was a teacher in a high school who had used a camera hidden in a pen to record video of female students, generally the breasts of students wearing tight fitting or low-cut clothing. The videos were recorded in the hallways, classrooms, cafeteria and grounds of the school. By the time the matter reached the Supreme Court, it was settled that the videos had been recorded surreptitiously and for a sexual purpose, and so the only issue was whether the students could be said to have a “reasonable expectation of privacy”. The Court concluded that they did, and therefore that the accused was guilty, and in the course of deciding that made important observations about the relationship between technology and privacy.

    The Court’s conclusion rests on statutory interpretation of the phrase “circumstances that give rise to a reasonable expectation of privacy” in section 162(1), which the majority concluded meant “circumstances in which a person would reasonably expect not to be the subject of the type of observation or recording that in fact occurred”. That determination is to be made based on a number of factors, including the location, whether the conduct is observation or recording, whether the subject is aware of or has consented to potential observation or recording, the manner in which it was done, the subject matter, any rules or regulations governing the situation, the relationship between the observer and the observed, the purpose for which it was done, and the personal attributes of the person who was observed or recorded. In the context of this case, that meant that students who knew they were being observed by school surveillance cameras which had been installed for security purposes could nonetheless reasonably expect that they would not also be recorded by a teacher secretly recording video of their intimate body parts for sexual purposes.

    In reaching that conclusion the majority of the Court relied on a number of considerations, including the problem to which the voyeurism offence was directed, Parliamentary reports at that time, and so on. In addition they held – over the objections of the minority – on principles arising from jurisprudence about section 8 of the Charter, the right to be free from unreasonable search and seizure, which is meant to protect a reasonable expectation of privacy. In particular they relied on the fact that privacy is meant to be assessed normatively, as the amount of privacy we are entitled to expect, rather than based on a risk analysis of the amount of privacy we can guarantee as a practical matter. They observed:

    [63] Relatedly, the privacy jurisprudence recognizes the potential threat to privacy occasioned by new and evolving technologies more generally and the need to consider the capabilities of a technology in assessing whether reasonable expectations of privacy were breached by its use: see Wise, at pp. 534-35; Tessling, at para. 16; see also Alberta v. UFCW, Local 401, at paras. 20 and 27. As Voith J. observed in Rudiger, even where a permanent recording is not made, technology may allow a person to see or hear more acutely, thereby transforming what is “reasonably expected and intended to be a private setting” into a setting that is not: para. 98, see generally paras. 93-98. While evolving technologies may make it easier, as a matter of fact, for state agents or private individuals to glean, store and disseminate information about us, this does not necessarily mean that our reasonable expectations of privacy will correspondingly shrink.

    Similarly they noted “The development of new recording technology, and its increasing availability on the retail market, may mean that individuals come to fear that they are being recorded by hidden cameras in situations where such recording was previously impossible; however, it does not follow that individuals thereby waive expectations of privacy in relation to such recording or that retaining such an expectation becomes unreasonable” (para 68).

    Both the nature of the technology and that the accused was recording rather than simply observing were seen as important. The Court noted 

    [74]…Recording has a greater potential impact on privacy than does mere observation, as a recording can be saved for long periods of time, replayed and studied at will, dramatically transformed with editing software, and shared with others — including others whom the subject of the recording would not have willingly allowed to observe her in the circumstances in which the recording was made. Indeed, in the case at bar, the recordings would have allowed Mr. Jarvis, by watching the videos he had made, to “observe” students in a manner that would otherwise be unimaginable. If Mr. Jarvis had attempted to stare at students’ breasts while standing directly beside them for long stretches of time, as he effectively could do by watching the recordings he made, it is inconceivable that the students would not have taken evasive action or that school authorities would not have been alerted to this behaviour earlier.

    Similarly, noting that not all forms of recording are equally intrusive, they held “the students would have reasonably expected that they would be captured incidentally by security cameras in various locations at the school and that this footage of them could be viewed or reviewed by authorized persons for purposes related to safety and the protection of property. It does not follow from this that they would have reasonably expected that they would also be recorded at close range with a hidden camera” (para 76). Putting the emphasis from that point in a different way, the Court also observed that although their decision here was recognizing a form of privacy in public spaces, that did not prevent all recording in such places:

    [89] In today’s society, the ubiquity of visual recording technology and its use for a variety of purposes mean that individuals reasonably expect that they may be incidentally photographed or video recorded in many situations in day-to-day life. For example, individuals expect that they will be captured by video surveillance in certain locations, that they may be captured incidentally in the background of someone else’s photograph or video, that they may be recorded as part of a cityscape, or that they may be recorded by the news media at the scene of a developing news story. In the school context, a student would expect that she might be captured incidentally in the background of another student’s video, photographed by the yearbook photographer in a class setting, or videotaped by a teammate’s parent while playing on the rugby team.

    A further element about the voyeurism offence which has been ambiguous is the requirement that the observation or recording be “surreptitious”. The meaning of this term was an issue in R v Lebenfish, where the accused was openly taking pictures of other people present on a nude beach, but without their knowledge. The debate there was more or less between the views that the accused’s behaviour was not surreptitious because he did not try to hide that he was taking photographs, or that it was surreptitious because the people being photographed were unaware of that fact. The trial judge acquitted by taking a photographer-centric interpretation as opposed to a subject-centric approach. Jarvis might, on the face of it, suggest that the subject-centric approach is the more appropriate one. On the other hand one might equally argue that those concerns are now adequately dealt with by the “reasonable expectation of privacy” analysis in the offence, and therefore that the “surreptitious” analysis should focus on different concerns.

  • 7 Feb 2019 1:45 PM | Anonymous

    Transmission data warrants not limited to transmission data

    The Newfoundland and Labrador Court of Appeal has adopted a very broad and expansive interpretation of police powers in relation to electronic data with its decision in Re: section 487.02 of the Criminal Code. Police in that case had sought a transmission data recorder (TDR) warrant under section 492.2 of the Criminal Code, a provision which was added in 2014. A TDR warrant only allows for the gathering of “transmission data”, which is defined as data that:

    1. relates to the telecommunication functions of dialling, routing, addressing or signalling;
    2. is transmitted to identify, activate or configure a device, including a computer program as defined in subsection 342.1(2), in order to establish or maintain access to a telecommunication service for the purpose of enabling a communication, or is generated during the creation, transmission or reception of a communication and identifies or purports to identify the type, direction, date, time, duration, size, origin, destination or termination of the communication; and
    3. does not reveal the substance, meaning or purpose of the communication.

    In essence, the purpose of a TDR warrant is to determine which devices communicate with which other devices, but is specifically not meant to gather information about the content of any of those communications.

    The Criminal Code also contains section 487.02, the assistance order provision, which allows a judge, where some other warrant has been issued, to “order a person to provide assistance, if the person’s assistance may reasonably be considered to be required to give effect to the authorization or warrant”. At a time when, for example, intercepting a telephone call would have required some physical device to have been placed on a telephone line, an assistance order would have been issued to the technician with the appropriate knowledge to install that device. It was the proper scope of section 487.02 in the context of a TDR warrant that was at issue.

    In this case, the RCMP obtained a TDR warrant to determine which telephone numbers were communicating with a particular identified cell phone which was associated with an investigation. In addition, they sought a section 487.02 assistance order requiring the telecommunications service providers to also provide the RCMP with the subscriber information associated with those other telephone numbers. The Provincial Court judge to whom they applied refused to grant the order, holding that that fell outside the scope of an assistance order. The Crown sought judicial review of that decision in the Supreme Court of Newfoundland and Labrador, General Division, but that court upheld the Provincial Court decision: the judge concluded that the point of an assistance order in the context of a TDR warrant could only be to assist in obtaining transmission data, and that “subscriber information is not transmission data.”

    The majority of the Newfoundland and Labrador Court of Appeal, however, granted the Crown’s appeal. They reasoned – based in part on fresh evidence they received from RCMP officers about how police use the information they obtain from TDR warrants and why the need assistance orders – that section 487.02 could be used to order the production of subscriber information. They review the principles of statutory interpretation and the history of the section, including the predecessor section which was replaced, but the essence of their reasoning is that transmission data is usually of very little use to the police by itself without subscriber information and therefore that Parliament must have intended that the police could also obtain subscriber information. In addition, where the lower courts had in effect reasoned that subscriber information was not clearly included within the definition of “transmission data”, the majority in the Court of Appeal held that it was not clearly excluded.

    The dissenting judge agreed with the interpretation of the courts below and argued that the majority approach “allows for an unwarranted and uncontrollable extension of the type of information that the police would be able to obtain in the course of executing a TDRW” (para 68). He agreed that allowing police also to obtain subscriber information would make an investigation more effective, but that that was not the purpose of an assistance order.

    With respect, the reasoning of the majority seems to ignore the significance of the fact that a TDR warrant is available based on the low standard of reasonable suspicion, rather than the more demanding standard of reasonable grounds to believe. They do make note of this point, observing at paras 48 to 53 that if the police were required to obtain a production order or general warrant in order to get the subscriber information, this would make things more difficult for them by requiring them to meet the higher “reasonable grounds” standard. What the reasoning of the Court of Appeal seems not to recognize is that that is exactly the point. There is meant to be a balance between the privacy interest intruded upon and the strength of justification required for intruding on it: the reasonable suspicion standard is only meant to be sufficient when the privacy interest in the information to be gathered is relatively minor. In other contexts, obtaining the name and address of a subscriber has been seen as significant enough to require the police to meet the “reasonable grounds” standard (see for example R v Spencer, 2014 SCC 43): allowing an assistance order to “tack that on” to a reasonable suspicion TDR warrant arguably violates section 8.

    It seems more likely that the intended purpose of a TDR warrant is as a bridging mechanism to more intrusive investigative techniques. For example, if a particular cell phone is associated with one member of a conspiracy and, out of all the numbers in communication with that phone over a one week period, two of those numbers were in touch twenty times a day, that might well give the reasonable grounds necessary to obtain a production order for the subscriber information for those two phones. There would have been no need, however to obtain the subscriber information for all callers right from the start.


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