McCarthy Tétrault Advance™ Building Capabilities for Growth CASL and Freedom of Expression – The Writing Is on the Wall 17 th Biennial National Conference – Communications Law and Policy Daniel G. C. Glover Partner Direct Line: (416) 601-8069 E-Mail: [email protected]May 1, 2014
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CASL and Freedom of Expression - Final LSUC Conference Slides
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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. GloverPartnerDirect Line: (416) 601-8069E-Mail: [email protected]
¬ 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.
¬ 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.
“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]
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]
“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]
“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)
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!)
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.
CASL = MORE THAN MALWARE/SPYWAREApplies 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