Law Bytes

Last week, the CRTC released its much-anticipated Bill C-11 ruling on the initial mandated contributions from Internet streaming services. While the government focused on the requirement to contribute 5% of Canadian revenues, a closer look revealed the CRTC largely ignored industry data and the actual contributions from Internet streaming services and seemed entirely unconcerned by the effects on competition and consumer costs.   Len St-Aubin is the former Director General of Telecommunications Policy at Industry Canada and played a role in the development of both the Broadcasting Act and Telecommunications Act. He provided consulting services to Netflix until 2020 and has since been an active participant in the debate on Internet policy. He joins the Law Bytes podcast to talk about the CRTC ruling, the state of TV and film production in Canada, and what may lie ahead for the streamers, creators, and consumers.

Bill S-210, the mandated age verification bill for pornography sites that in reality targets everything from Google Search to Netflix, was expected to be the subject of extensive hearings by the Standing Committee on Public Safety and National Security. But after a Conservative filibuster, it appears that there will be only one hearing and that the bill will be reported back to the House unamended. Before that vote, this week’s Law Bytes podcast offers up a “what could have been” hearing on the bill. It features my mock opening statement alongside responses to some of the actual questions raised by MPs on issues such as privacy, website blocking, and poorly defined terms in the bill.

Bill C-27, Canada’s proposed privacy reform and AI regulation bill, continues to slowly work its way through the committee process at the House of Commons with the clause-by-clause review of the AI portion of the bill still weeks or even months away. Recently a group of nearly 60 leading civil society organizations, corporations, experts and academics released an open letter calling on the government to separate the bill into two.  Andrew Clement has been an important voice in that group as he tracked not only the committee hearings but also dug into the consultation process surrounding the bill. Clement is a Professor Emeritus in the Faculty of Information at the University of Toronto, where he coordinates the Information Policy Research Program and co-founded the Identity Privacy and Security Institute (IPSI). He joins the Law Bytes podcast to talk about AI regulation in Canada, concerns with the bill, and offers insights into the legislative and consultative process.

Prime Minister Justin Trudeau recently claimed that “we’ve cut the cost of cell phone plans in half since 2019 - in part by increasing competition.” Is that true? What is the real state of Canadian wireless competition and how does pricing compare with other countries? To help answer those questions, this week David Soberman, a Professor of Marketing at the Rotman School of Management at the University of Toronto and the Canadian National Chair of Strategic Marketing joins the Law Bytes podcast. Professor Soberman’s research is focused on understanding how the operation of markets is affected by the exchange of information between organizations and customers, relationships within the distribution channel and the introduction of innovations to markets.

Concerns about the impact of social media on youth have been brewing for a long time, but in recent months a new battleground has emerged: the courts, who are home to lawsuits launched by school boards seeking billions in compensation and demands that the social media giants change their products to better protect kids. Those lawsuits have now come to Canada with four Ontario school boards recently filing claims. Robert Diab is a professor of law at Thompson Rivers University in Kamloops, British Columbia. He writes about constitutional and human rights, as well as topics in law and technology. He joins the Law Bytes podcast to provide a comparison between the Canadian and US developments, a deep dive into alleged harms and legal arguments behind the claims, and an assessment of the likelihood of success.

A little over five years ago, I launched the Law Bytes podcast with an episode featuring Elizabeth Denham, then the UK’s Information and Privacy Commissioner, who provided her perspective on Canadian privacy law. I must admit that I didn’t know what the future would hold for the podcast, but I certainly did not envision reaching 200 episodes. I think it’s been a fun, entertaining, and educational ride. I’m grateful to the incredible array of guests, to Gerardo Lebron Laboy, who has been there to help produce every episode, and to the listeners who regularly provide great feedback.  The podcast this week goes back to where it started with a look at Canadian privacy through the eyes of Europe. It flew under the radar screen for many, but earlier this year the EU concluded that Canada’s privacy law still provides an adequate level of protection for personal information. The decision comes as a bit of surprise to many given that Bill C-27 is currently at clause-by-clause review and there has been years of criticism that the law is outdated.  To help understand the importance of the EU adequacy finding and its application to Canada, Colin Bennett, one of the world’s leading authorities on privacy and privacy governance, joins the podcast.

The Online Harms Act – otherwise known as Bill C-63 – is really at least three bills in one. The Law Bytes podcast tackled the Internet platform portion of the bill last month in an episode with Vivek Krishnamurthy and then last week Professor Richard Moon joined to talk about the return of Section 13 of the Canada Human Rights Act. Part three may the most controversial: the inclusion of Criminal Code changes that have left even supporters of the bill uncomfortable.   Boris Bytensky of the firm Bytensky Shikhman has been a leading Canadian criminal law lawyer for decades and currently serves as President of the Criminal Lawyers’ Association. He joins the podcast to discuss the bill’s Criminal Code reforms as he identifies some of the practical implications that have thus far been largely overlooked in the public debate.

The public debate surrounding Bill C-63, the Online Harms Act, has focused primarily on Human Rights Act and Criminal Code reforms. The Human Rights Act changes include the return of Section 13 on hate speech, which was repealed by the Harper government after criticisms that it unduly chilled freedom of expression. To help understand the history of Section 13 and its latest iteration, this week Professor Richard Moon, Distinguished University Professor and Professor of Law at the University of Windsor joins the Law Bytes podcast. The Canadian Human Rights Commission asked Professor Moon to conduct a study on Section 13 in 2008 and his report is the leading source on its history and application. In this episode, we discuss that history and consider the benefits and risks of inserting it into Bill C-63.

New legislation making its way through the U.S. Congress has placed a TikTok ban back on the public agenda. The bill – which would lead to either a divestiture or ban – has passed the House of Representatives and is now headed to the Senate. On the Canadian front,  TikTok is already prohibited on government devices at the federal level alongside some provinces, the government has quietly conducted a national security review, and there are new calls to ban it altogether from the Canadian market.   Anupam Chander is a law professor at Georgetown University and leading expert on the global regulation of new technologies. He joined the Law Bytes podcast several years ago when a TikTok ban was raised by the Trump Administration and he returns this week to discuss the latest developments and their broader implications.

The federal government has struggled to update Canadian privacy laws over the past decade, leaving the Supreme Court as perhaps the leading source of privacy protection. In 2014, the court issued the Spencer decision, which affirmed a reasonable expectation of privacy in basic subscriber information and earlier this month it released the Bykovets decision, which extends the reasonable expectation of privacy to IP addresses. Vibert Jack is the litigation director of the BC Civil Liberties Association, which successfully intervened in the case. He joins the Law Bytes podcast to examine the case, including the evolution of Canadian law, the court's analysis, and the implications of Bykovets for Internet privacy in Canada.