Information and Privacy Cases of the Year

I’ve always loved year-end lists. Here’s a Canada-centric top ten “information management and privacy cases” list for 2009. Endorsement and criticism invited!

#1 Grant v. Torstar. The Supreme Court of Canada recognizes a new defamation defence – the “responsible communication on matters of public interest” defence. Truly novel and highly relevant. Is the dialog on the kind of information that must flow in the name of the public interest also a building block for the privacy tort? From just days ago.

#2 R. v. McNeil. This unanimous Supreme Court of Canada judgement broadens the scope of the Crown’s duty of disclosure to an accused person and facilitates an accused person’s right to third-party production. Significant changes to critical criminal procedure doctrine. From January.

#3 R. v. Patrick. The Supreme Court of Canada unanimously holds that the police did not violate an accused person’s right to be free from unreasonable search and seizure by seizing information discarded in residential garbage. It is now the leading case on abandonment – that is, how one must treat information protected by section 8 in order to maintain Charter protection. From April.

#4 United States v. Comprehensive Drug Testing. On how to design and execute search warrants for electronically stored information given co-mingling and other concerns will often make broad seizure and off-site search a necessity. An American case, but highly-reasoned, from an appellate court and on a universal issue. Issued by the Ninth Circuit Court of Appeals (sitting en banc) in August.

#5 GEA Group AG v. Ventra Group Co. Clarifies the requirements for pre-action discovery and affirms that an applicant for pre-action discovery must establish that the discovery sought is “necessary” to the process of obtaining justice for some wrongdoing. Not landmark, but significant and highly relevant given pre-action discovery is a means of investigating and pursuing claims based on anonymous internet use. From the Ontario Court of Appeal in August.

#6 R. v. Chehil. Addresses law enforcement’s ability to ask for and receive information about customers from commercial actors. Chehil is about access to a WestJet passenger manifest, but its significance is enhanced because it is analogous to the numerous cases about the disclosure of customer name and address data by internet service providers to law enforcement; everybody wants to unmask the internet’s bad actors. From the Nova Scotia Court of Appeal in November.

#7 Poliquin v. Devon Canada Corp. Litigation about the degree of privacy employees ought to expect in sending “personal” e-mails on work systems is on the rise. Poliquin contains some very strong dicta supporting employers’ interest in controlling employee use of their computer systems, comments which are particularly significant if one accepts that the rules governing workplace privacy ought to be based on reasonable workplace norms. From the Alberta Court of Appeal in June.

#8 R. v. Gomboc. A split judgement in which the majority holds that the police violate an accused person’s Charter rights by using a digital recording ammeter to gather information in support of a grow-op investigation. Notice of Appeal to the Supreme Court of Canada was filed in September. This will give the Supreme Court of Canada an opportunity to consider the “biographical core of personal information” concept yet again as well as a chance to consider the affect of a contractual language which purports to enable a commercial service provider to collaborate with the police. This second issue is the same one at play in the Chehil case. From the Alberta Court of Appeal in August.

#9 Toronto Star Newspapers v. Canada. A five judge panel of Ontario Court of Appeal holds that the Criminal Code mandatory ban on publication of bail proceedings (when requested by an accused) violates the Charter-protected right to freedom of the press. Three of five judges, however, uphold the ban insofar as it insulated juries (and not judges) from pre-trial publicity. Two of five judges hold that the ban can not be saved at all. Both the majority and minority consider the impact of the internet and the concept of practical obscurity. The Supreme Court of Canada heard an appeal on November 16th and reserved judgement.

#10 Leduc v. Roman. The most principled of the “Facebook production cases” – cited in at least four other cases (not all favorably) since its issuance in February. Endorses a presumption that social networking sites like Facebook will contain producible information about loss of enjoyment of life. From Brown J. of the Ontario Superior Court of Justice.

6. R. v. Chehil. This decision, from the Nova Scotia Court of Appeal in November, is the first appeal court decision that addresses law enforcement’s ability to access to customer name and address data from an internet service provider without a warrant. Significant for the same reason as GEA Group.
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