by Meghan Sali and Steve Anderson
• Canada’s system of copyright enforcement is internationally recognized as a next-generation approach – striking a balance between the rights of artists and creators and those of Internet users. Our system is designed to protect people from false claims of infringement and needless takedowns of legitimate online speech.
We have cause to be proud of this made-in-Canada solution that was won after a lengthy consultation and which only came fully into force this past January. The system is known as “notice-and-notice” and obliges an Internet Service Provider (ISP) to deliver notices alleging copyright infringement to its customers.
Compared with the US’ system, the advantages of the Canadian approach are clear. In the US’ “notice-and-takedown” system, content is removed by the host when a notice is received and, in most cases, before any decision is made by any court.
Unfortunately, when copyright law is misused, it can have such chilling effects on free speech that it acts as a form of censorship. Under copyright regimes that allow for takedown provisions, examples of this are increasing.The law is already being abused by big US media firms, which are sending huge volumes of notices to Canadians through their ISPs. In many cases, these notices contain information that misrepresents Canadian law, such as demanding settlements or threatening disconnection from the Internet – all on the basis of alleged infringement associated with an IP address, not a person.
Canadians have been calling on Industry Minister James Moore to fix the rules and implement a template system for notices to standardize the process. Minister Moore should also ensure Canadians receive accurate information about the possible legal ramifications of the notice, in the context of our domestic laws.
But what does all this have to do with Canada’s Digital Privacy Act, Bill S-4? This Bill aims to amend Canada’s privacy laws and implement much needed regulations around security breach disclosure requirements.
On the whole, the Bill has been welcomed by experts, except for one glaring flaw: the Bill expands the voluntary warrantless disclosures of personal information – not to law enforcement agencies, but rather to other private companies, and without the consent or even the knowledge of the person whose private information is being shared.
Under S-4, these voluntary disclosures are allowed where there is an investigation into a contract breach or alleged legal violation. While this may appear reasonable, it is a massively broad scope. Consider the dozens of contracts an individual signs every year without even reading them –especially the Terms of Service agreements.
Most grievously, S-4 would render the Canadian notice-and-notice system impotent, as ISPs would be empowered, with legal immunity, to disclose personal information about their customers to copyright trolls, without the customer’s knowledge or consent.
The new system is already being exploited by US media firms; any extension of powers for ISPs to voluntarily make warrantless disclosures of private information would expose Canadians to great risk and undermine our domestic, democratic process.
Canadians are calling for James Moore to take action on this at https://openmedia.org/shakedown
Meghan Sali is Campaigns Coordinator for Free Expression with OpenMedia.org. Steve Anderson is the executive director.