Library Boy told us last year about some tentative steps that courts were making to embrace – or to sniff around tentatively – the whole subject of social media. Today's announcement from the UK Supreme Court that it will start official tweets of judgments – this in anticipation of the Assange extradition decision – represents the first wholesale adoption by a final court of appeal.

It overshadows Chief Justice McLachlin's announcement within a speech at Carleton University on the Media and the Courts, that the Canadian judiciary should start to think seriously about social media.

See the Globe, the Star, CTV and the Halifax papers

You can see a brief video clip here.

I understand that the Australians may be thinking about the issues too.

The Paris court of appeals has decided that a suggested search query generated by the Google Suggest function defamed the company whose name was first entered into the search box. This feature works by displaying the most popular searches performed by other Google searchers associated with the text typed into the search box. So Google doesn’t decide what is displayed; its machines just count and show.

Turns out that one of the most popular associations with the name of the plaintiff company was ‘escroc’, which in French means crook or swindler.

Is this a kind of ‘crowd-sourced’ defamation? What can Google or any search engine realistically do about it? Can the company program its suggestion feature to avoid any words in any language that may have a defamatory meaning? (I guess defamation by context or innuendo may be harder to demonstrate in this process.)

Would it be defamatory if a search for Company X turned up, as an ‘auto-suggest’, CompanyXSucks.com?

The damages were pretty stiff, it seems to me – 50,000 euros.

So: is there a problem here, in your view? Would Canadian law produce the same result? How would you advise your client, the search engine? What about your client Company X, in my hypothetical?

The state of Indiana may soon become the 23rd state in the US to adopt right-to-work legislation. With the Senate Committee having already passed the Bill, it will go to the full Senate. If there are no amendments, the governor of Indiana could be signing the Bill as early as tomorrow (see a news article here).

Back-to-work legislation prohibits contracts between employers and unions which require all employees to pay union dues as a condition of employment. As such, this type of legislation gives the non-member employee the option of paying union dues (or not). Supporters of this type of legislation believe that it makes the market more competitive and brings greater investment into the state. Those against right-to-work legislation see it as the government's attempt to "bust" unions and will lead to lower wages.

In Canada, we have the Rand formula which forces all employees, whether members of the union in place or not, to pay union dues, as it is considered that all employees benefit from the negotiated terms and conditions of employment. The Supreme Court of Canada has already decided that the forced payment of dues does not constitute a violation of the freedom of expression and that if there were a violation of the freedom of association, it was saved by section 1 of the Canadian Charter of Human Rights and Freedoms. In a day and age where the role of the trade union is questioned, would or should right-to-work legislation have a place in Canadian labour law?

Fair use (s. 107) is an intentionally drafted ambiguous provision in the U.S. Copyright Act for the purpose of defending users of copyright works from a variety of otherwise infringing acts. Although often compared to the Canadian fair dealing, the two defenses are quite different. Two interesting documents on the analysis of fair use and its interpretation were recently released.

General Counsel from the U.S. Patent and Trademark Office released a memorandum on 19 January 2012 on: USPTO Position on Fair Use of Copies of NPL Made in Patent Examination. The memorandum looks at three issues: Whether it is fair use of the USPTO to make copies of copyrighted non-patent literature (NPL) and provide such copies to an applicant in the course of patent examination? Whether it is fair use for the USPTO to provide certified copies of entire file histories, including copyright NPL to members of the public, for a free? Whether it is fair use for an applicant to make a copy of a piece of copyrighted NPL and submit it to the USPTO?

Code of Best Practices in Fair Use for Academic and Research Libraries was published on 25 January 2012 by the Association of Research Libraries and the Center for Social Media. This document addresses various questions such as how to make libraries' special collection available online; what can be digitized for student use; and, reproducing materials for faculty, staff and other users.

Those who apply fair dealing or fair use or are generally interested in these topics will find the discussions and analysis interesting in both of these documents, though at the end of the day, the application of either of these defenses very much depends upon the circumstances in each particular situation.

Globalization takes its toll. This time the toll is to be paid by Americans who want to use works that had, according to US law at the time, entered the public domain but that have been removed from that status and place back under copyright by a 1994 act of the US Congress in order to bring that country into line with the Berne Convention for the Protection of Literary and Artistic Works. As you might imagine, a number of disappointed users sued the US government, arguing that according to the intent of the Copyright and Patent Clause of the American constitution once a work was in the public domain it could not be withdrawn from it. Last week the case was ruled on by the US Supreme Court in a 6-2 decision, Golan v. Holder, No. 10-545 [PDF]. Justice Ginsburg, writing for the majority, ruled that the law in question:

does not transgress constitutional limitations on Congress’ authority. Neither the Copyright and Patent Clause nor the First Amendment, we hold, makes the public domain, in any and all cases, a territory that works may never exit.

As always, the SCOTUSblog is an excellent source for material surrounding the decision. To learn more about the musician, Lawrence Golan, who challenged the law, take a look at a couple of articles on the issue in The Chronicle: 1, 2.

The works affected in 1994, judged to number in the millions, are largely works by non-Americans that, as foreign works, were not as protected by copyright as were native works. The "recaptured" works included music by Prokofiev, Shostakovich, and Stravinsky; and:

books by H.G. Wells, Virginia Woolf, and C.S. Lewis; films by Alfred Hitchcock, Federico Fellini, and Jean Renoir; and artwork by M.C. Escher and Pablo Picasso.

Canada ratified the Berne Convention in 1931, signed it in 1948, and acceded to current forms in 1970 and 1998.

English news sources reported yesterday that a three-judge panel of the High Court found Theodora Dallas, until recently a university lecturer in psychology, guilty of contempt of court and sentenced her to six months imprisonment. She will serve the first three in jail and "be on license" for the second three.

Dallas was on a jury trying a case of grievous bodily harm. The trial judge had given jurors clear instructions not to look up matters connected to the trial. At home, she searched the term "grievous bodily harm" and then put it in conjunction with "Luton," producing a result that showed the defendant had once been charged with (and acquitted of) rape. Dallas told other jurors during their deliberation what she had found in this way, with the consequence that, when this breach was reported to the trial judge, the trial was stopped.

A written judgment is not yet available online, so far as I can find. However, lengthy excerpts are available in a story in the Guardian. The story is also carried by the BBC, and The Register, among others.

This is not the first time an English court has dispensed a stiff penalty for disobeying instructions to a jury to stay off the internet. In June of this year a juror who used the internet to contact a defendant who had been acquitted earlier in the large trial was sentenced to eight months in prison.

As might be imagined, this case has once again raised concern and comment about the difficulty of conducting jury trials in this day and age of ubiquitous internet access. It will be difficult if not impossible, I suspect, to persuade obstreperous or "Bolshy" jurors that they mustn't do what they can so easily do in fact — and with little fear of getting caught if they keep their mouths shut.

The U.S. Court of Appeals for the 10th Circuit ruled today in Awad v. Ziriax et al, blocking a proposed constitutional amendment that would forbid domestic courts from considering or using international law. The more controversial aspect of the amendment is that it would also ban courts from using or considering Shari'ah law.

The Appeals court upheld the decision of The Western District Court of Oklahoma on November 29, 2010 to grant a preliminary injunction blocking the amendment, and stated,

Appellants argue there is no discrimination because the amendment bans all religious laws from Oklahoma courts and Sharia law is named only as an example. But that argument conflicts with the amendment’s plain language, which mentions Sharia law in two places…

The amendment bans only one form of religious law—Sharia law. Even if we accept Appellants’ argument that we should interpret “cultures” to include “religions,” the text does not ban all religious laws. The word “other” in the amendment modifies both “nations” and “cultures.” Therefore, if we substituted the word “religions” for “cultures,” the amendment would prohibit Oklahoma courts from “look[ing] to the legal precepts of other . . . religions.” The word “other” implies that whatever religions the legislature considered to be part of domestic or Oklahoma culture would not have their legal precepts prohibited from consideration, while all others would. Thus, the second portion of the amendment that mentions Sharia law also discriminates among religions.

The court also commented on the lack of compelling state interest by the appellants,

Appellants do not identify any actual problem the challenged amendment seeks to solve. Indeed, they admitted at the preliminary injunction hearing that they did not know of even a single instance where an Oklahoma court had applied Sharia law or used the legal precepts of other nations or cultures, let alone that such applications or uses had resulted in concrete problems in Oklahoma…

The proposed amendment goes further than preventing courts from “applying” Sharia law. The amendment forbids state courts from “considering” those laws. See Aplt. App. Vol. 1 at 168. Even if the state could identify and support a reason to single out and restrict Sharia law in its courts, the amendment’s complete ban of Sharia law is hardly an exercise of narrow tailoring. Appellants have not carried their burden to show why the proposed amendment is “closely fitted” to a compelling interest.

Finally, the court commented on the role of the judiciary in the democratic process,

Federal courts should be wary of interfering with the voting process, but we agree with the district court and the Sixth Circuit that “‘it is always in the public interest to prevent the violation of a party’s constitutional rights.’” Awad, 754 F. Supp. 2d at 1308 (quoting G & V Lounge, Inc. v. Mich. Liquor Control Comm’n, 23 F.3d 1071, 1079 (6th Cir. 1994)). “While the public has an interest in the will of the voters being carried out . . . the public has a more profound and long-term interest in upholding an individual’s constitutional rights.” Id.; see also Cate v. Oldham, 707 F.2d 1176, 1190 (10th Cir. 1983) (noting “[t]he strong public interest in protecting First Amendment values”).

The EU privacy directive (1995 version – I gather that it is being revised, though I don't know on what timetable) provides that member countries may not release personal information outside the EU unless the recipients are bound by equivalent safeguards for privacy.

While the US has a 'safe harbor' agreement with the EU about criteria for judging when the protections are equivalent, Canada does not. On the other hand, we have a generally applicable privacy law (PIPEDA) and some provincial equivalents, plus personal health information laws in most provinces. Are they enough to permit the personal information to come here, or are there problems?

I think for example of a provision like Article 8 of the Directive, about processing of 'special categories of data', like heath care data. This is not to be released without consent of the individual concerned. However, there is an exception for data released for diagnostic or health care reasons, if the person to whom the PI is released is subject to safeguards under the applicable law. (Arrticle 8(3))

Are the provincial health information protection acts (I think of the Personal Health Information Protection Act in Ontario, but most provinces have them, as noted) considered adequate protection for such disclosure from the EU? If there is no official EU-level pronouncement on the topic, have you or your clients run into any problems in getting information transferred from EU countries that would rely on this legislation for authority? Do the transferors (or their lawyers) distinguish between PIPEDA and the specific obligations of the provincial laws in discussing such transfers?

In short, how is this working in practice, given the variety of EU laws implementing the Directive and the variety of laws that apply to the potential recipients?

Are any of the likely revisions to the Directive going to affect operations on this practical level, or are they just aimed at updating for new technology or practices, like data storage in the cloud?

The conclusion of most of the occupy camps across North America this fall was largely peaceful, with some notable exceptions involving pepper spray and excess force. But the protesters for the most part were non-violent, and in my exposure in Toronto, largely respectful of the legal system.

Although skepticism abounded when police announcements were shared or news stories circulated, judicial decisions appeared to have much more impartiality and credibility to the protesters. If the courts can be used as an alternative to police excess and fiascoes like the G20, I interpret it as a small success for our judicial system.

A recent American decision could see protesters, some of them backed with union support, bringing their own actions to address wrongs that they see as the heart of the occupy movement. On December 20, 2011, the New York Court of Appeals unanimously ruled in Assured Guaranty (UK) Ltd. v. J.P. Morgan Investment Management Inc. that the New York General Business Law article 23-A, sections 352-353, also known as the "Martin Act," does not preempt common law securities claims for breach of fiduciary duty and gross negligence.

Background

The Martin Act was passed in 1921, and gives the Attorney General extremely broad enforcement authority to regulate, investigate, and bring civil and criminal actions for securities fraud, including the power to seek equitable and monetary relief. The only elements necessary to demonstrate a violation under the Martin Act is a misrepresentation or omission of material fact when inducing or promoting securities trading, without a need to show intent, reliance or damages.

In Assured, the defendant claimed that the Martin Act precluded private investors from initiating their own common law claims, a strategy that has been used extensively to preempt non-fraud common law claims otherwise covered by the statute. More recent court judgments have rejected this approach.

The plaintiff claimed that the defendant had mismanaged a $500 million investment portfolio of an entity by investing in high-risk securities such as subprime mortgage-backed securities, without diversifying the portfolio or advising the the entity of the true level of risk. The plaintiff also claimed that the defendant improperly invested in a nonparty client rather than benefit the portfolio or the plaintiff, causing a 86 per cent financial loss to the portfolio from $360 million on June 30, 2006 to $50 million on Feb. 28, 2009, and triggering a the plaintiff's guaranteed obligation to pay.

The Supreme Court granted the defendant's motion and dismissed the claim in its entirety under CPLR 3211, holding that breach of fiduciary duty and gross negligence fell,

within the purview of the Martin Act and their prosecution by plaintiff would be inconsistent with the Attorney General's exclusive enforcement powers under the Act.

The Appellate Division reinstated two tort claim for breach of fiduciary duty and gross negligence and a contract claim, stating,

there is nothing in the plain language of the Martin Act, its legislative history or appellate level decisions in this state that supports defendant's argument that the Act preempts otherwise validly pleaded common-law causes of action"

The Appellate Division granted the defence's leave to appeal on a certified question,

…plaintiff's common-law breach of fiduciary duty and gross negligence claims must be dismissed because they are preempted by the Martin Act. Contending that the Martin Act vests the Attorney General with exclusive authority over fraudulent securities and investment practices addressed by the statute, J.P. Morgan asserts that it would be inconsistent to allow private investors to bring overlapping common-law claims. J.P.

Analysis

Graffeo J. rejected the defendants submissions that CPC Intl. v. McKesson Corp. and Kerusa Co. LLC v. W10Z/515 Real Estate Ltd. Partnership abrogated all nonfraud common-law claims. She indicated that legislative intent was integral here, and noted that the Act had been amended a number of times to broaden its powers. She cited Hechter v. New York Life Ins. Co. and ABN AMRO Bank, N.V. v. MBIA Inc. to emphasize that an unambiguous legislative intent to override the common law would be necessary for abrogation, and pointed to Burns Jackson v. Lindner,

…when the common law gives a remedy, and another remedy is provided by statute, the latter is cumulative, unless made exclusive by the statute…

Although the Martin Act did not create a private right of action to enforce its provisions, the defendant was unable to demonstrate anything in the legislative history of any of the amendments demonstrating a mandate that would abolish private common-law claims.

The cases relied on by the defendant were distinguished from Assured. In the first, the plaintiff brought a private action under the Martin Act, as opposed to a private action independent of the Act. In the second case, the plaintiff's entire claim was based on a Martin Act disclosure violation that did not have an independent cause of action, and private parties do not have a right to enforce the Martin Act. Graffeo J. concluded that a mere overlap between the common law and the Martin Act and its regulations is not enough to extinguish the remedies in common law, as long as it is not entirely dependent on the Martin Act for viability.

The court also considered policy implications regarding expansive preemption in securities and real estate, but concluded,

…we believe that policy concerns militate in favor of allowing plaintiff's common-law claims to proceed. We agree with the Attorney General that the purpose of the Martin Act is not impaired by private common-law actions that have a legal basis independent of the statute because proceedings by the Attorney General and private actions further the same goal — combating fraud and deception in securities transactions. Moreover, as Judge Marrero observed recently, to hold that the Martin Act precludes properly pleaded common-law actions would leave the marketplace "less protected than it was before the Martin Act's passage, which can hardly have been the goal of its drafters" (Anwar v. Fairfield Greenwich Ltd., 728 F Supp 2d 354, 371 [SD NY 2010]).

Implications

The defendant has noted that the decision relates to the adequacy of the pleadings and not the merits of the claim, and intend to continue to vigorously dispute the claim as they consider their management of the client's accounts appropriate. The case did not disturb the general rule that securities fraud claims by classes of 50 or more are precluded by the Securities Litigation Uniform Standards Act (SLUSA).

Robert A. Wallner of Milberg LLP, who filed an amicus brief for labor organizations, called the decision "a landmark change in the law," and said that "the ramifications of this decision are quite extraordinary."

There has been quite a bit of commentary about the union ties to the occupy movement, and in some ways they have been the biggest victims of the economic crisis. The largest security investors in the United States are union members, largely through pension plans. This decision is expected to open the doors to more actions by unions out of events during the economic recession. It may also demonstrate some of the future relevance of unions, in an era of transition to a service economy and declining unionization rates.

For disgruntled investors, or workers who have invested through a pension or labour group, these types of actions may finally provide the type of relief that many were expecting, instead of the bonuses that were often observed. Occupiers are expected to head out to the parks again once the weather warms up, and maybe this time some of them will turn to the courts instead.

Because of the possible protections afforded "freedom of religion" under the constitutions of many countries, we've seen various groups or individuals seek to exempt their activities from the normal operation of the law by claiming to be or belong to "churches" or "religious organizations." The use of certain otherwise proscribed drugs, for example, has been claimed to be an important part of "religious practice" (see, e.g. Holy Light of the Queen and the drug ayahuasca; and the amazingly prolific Church of the Universe, involving marijuana). More commonly, perhaps, people attempt to form churches or to become recognized as ministers of churches in order to avoid taxes, whether on property or income. Negotiating the rendering interface, so to speak, between caesar and god, is not easy.

Now we learn that in Sweden, official recognition has been given to the Church of Kopimism. After knocking on Kammarkollegiet's door twice before, Isak Gerson's Missionerande Kopimistamfundet got third-time-lucky as the gates to status opened.

What do they believe in? Information. Yep. Information. This, from their official site—which may or may not be available when you try, having been Slashdotted:

For the Church of Kopimism, information is holy and copying is a sacrament. Information holds a value, in itself and in what it contains, and the value multiplies through copying. Therefore, copying is central for the organisation and its members.

Being recognized by the state of Sweden is a large step for all of kopimi. Hopefully, this is one step towards the day when we can live out our faith without fear of persecution . . .

I suspect this is more a direct attack on copyright than it is a critique of (official) religions. But it points up once again the incompatibility, in my view, of an empirical system open to argument and evidence (whether or not it comes anywhere near that "ideal") and a belief-based system holding inarguable premises—or, to put it another way, perhaps, parliamentary supremacy versus supreme being supremacy. j

Those of us in Canada who delve and spin in the world of information may find it harder to persuade the revenue folks of our deserving sanctity. But according to Gerson, we are probably already members of his church:

The community of kopimi requires no formal membership. You just have to feel a calling to worship what is the holiest of the holiest, information and copy. To do this, we organize kopyactings – religious services – where the kopimists share information with eachother through copying and remix.

Skål.

I have always loved law reform commission reports. They are great sources for legal research. Many of the reports provide historical background on an issue and you can often find comparative information about how other jurisdictions have responded to a legal problem.

My highlights from the fall of 2011:

• Of course, the great news is that all of the reports of the former Ontario Law Reform Commission have been digitized (as reported December 12 right here on Slaw)
• The British Columbia Law Institute (BCLI) is launching a two-year project to consider reforms to judge-made rules governing when a person is determined to have the mental capacity to carry out a transaction or enter into a relationship
• Earlier this week, the Law Commission in England published its final report on Intestacy and Family Provision Claims on Death. The report proposes 2 draft bills to bring inheritance law into line with the needs and expectations of modern families, and simplify the law to help the bereaved deal with the property of a deceased family member.
• In late October, the Law Reform Commission of Ireland released its Consultation Paper on Sexual Offences and Capacity to Consent. In the Consultation Paper, the Commission made 15 provisional recommendations for reform, including the repeal and replacement of the existing law on sexual offences involving persons with intellectual disability. The Commission argued that section 5 of Ireland's Criminal Law (Sexual Offences) Act 1993 (a) fails to protect people with intellectual disability from unwanted sexual contact generally and (b) fails to empower people with intellectual disability to realise their right to sexual expression (it does not clearly provide for situations of consensual sex between two persons with intellectual disability). The Commission also looked at practices and laws in England and Wales, Scotland, Canada, and New Zealand.
• In September, the British Columbia Law Institute released a Report on Proposals for Unfair Contracts Relief: "This report recommends reforms to the leading concepts used by contract law to tackle the problem of unfairness. These concepts are unconscionability, duress, undue influence, good faith, and misrepresentation. Over the past years, they have been considered in an increasing number of court decisions. This has led to an expansion of, and a degree of confusion about, their scope. It is now timely to rationalize and consolidate these concepts." The BCLI website also includes a consultation paper on the issue as well as 4 backgrounders.
• The Alberta Law Reform Institute (ALRI) released a discussion report on Estate Administration.

Of course, people often ask whether law reform commission reports have any real impact. Not always, but sometimes. In November, the proposed Family Law Act was introduced in the British Columbia legislature after a major review of family legislation in the province. It is intended to overhaul the Family Relations Act. The proposal contains recommendations for changes to family law contained in four reports of the British Columbia Law Institute:

• Report on Pension Division on Marriage Breakdown (BCLI Report No. 44, 2006);
• Report on the Parental Support Obligation in Section 90 of the Family Relations Act (BCLI Report No. 48, 2007);
• Report on Appointing a Guardian and Standby Guardianship (BCLI Report No. 30, 2004); and
• Report on the Need for Uniform Jurisdiction and Choice of Law Rules in Domestic Property Proceedings (BCLI Report No. 1, 1998).

We have discussed Arizona’s controversial new anti-immigration measures several times on Slaw (e.g., here, here and here). Besides appearing to discriminate against various groups, the measures conflict with federal immigration laws and policies. Well, the saga is not yet over. On December 12, 2011, the New York Times announced that the United States Supreme Court agreed to decide whether Arizona may impose such tough anti-immigration measures. The measures include:

• Requiring police officers to determine the immigration status of people they stop for a violation of any law if the officers think the persons are in the country illegally
• Requiring people to carry their identification papers at all times in public places
• Making a crime of failure to apply for valid immigration papers
• Requiring everyone who is arrested to have their immigration status checked with the federal government before release
• Allowing police officers to arrest anyone they believe has committed a crime that would make them removable from the country
• Making it a crime for illegal immigrants to apply for or perform any work

The US Ninth Circuit Court of Appeals in San Francisco previously stopped the above provisions from coming into force.

Paul D. Clement, representing Arizona, urged the Court to hear the case, Arizona v. United States, No. 11-182, by stating:

The law did not conflict with but, rather, complemented federal policies. The Ninth Circuit’s decision had completely foreclosed Arizona’s effort to address the disproportionate impact of unlawful immigration in a state with a 370-mile border with Mexico.

We shall see whether the Supreme Court agrees with Mr. Clement.

The Attorney General for England and Wales, Dominic Grieve gave a very interesting speech on December 1 entitled 'Contempt – A Balancing Act: balancing the freedom of the press with the fair administration of justice' to journalism students where he commented on his approach to contempt of court.

'Citizen journalists' should not think they are immune to the law of contempt, that there is a certain belief that so long as something is published in cyberspace there is no need to respect the laws of contempt or libel. While he accepts the danger posed to the administration of Justice by many bloggers is minimal, he say that we should not underestimate the potential for a blog or tweet to go viral.

We have seen in recent years not only the rise of social media but also the blog and the citizen journalist. Unlike major news organisations, which on the whole act in a responsible and measured manner, the inhabitants of the internet often feel themselves to be unconstrained by the laws of the land. There is a certain belief that so long as something is published in cyberspace there is no need to respect the laws of contempt or libel. This is mistaken.

Whilst I accept the danger posed to the administration of Justice by many bloggers is minimal, we should not underestimate the potential for a blog or tweet to go viral. As incautious city bankers and brides to be have discovered to their cost, comments on the web can soon be published far beyond their original, limited audience. And I use the word published advisedly, as publication is of course the phrase used within the Contempt of Court Act – an online article which breaches the strict liability rule runs the risk of running afoul of the law of contempt.

……………………..

The last case which I would like to mention involves something with which I suspect many of you are very familiar – Facebook.

A defendant in a trial had been acquitted of the charges she faced but the jury continued to consider their verdicts regarding her co-defendants. The night of her acquittal, one of the jury decided to go online and chat on Facebook.

Unfortunately she chose to track down the acquitted defendant on Facebook and proceeded to let her know her thoughts on the trial and the ongoing debate in the jury room. Knowledge of jury discussions is forbidden to all outside the jury. It is an offence under the Contempt of Court Act 1981 to 'obtain, disclose or solicit any particulars of statements made, opinions expressed, arguments advanced or votes cast by members of a jury in the course of their deliberations in any legal proceedings'

In this case the juror and the former defendant engaged in a Facebook chat about what was happening in the jury room. Their conduct came to the attention of the Judge and eventually to me. Again, in my Public Guardian role, proceedings for this type of contempt of court cannot be instituted save by or with my consent or on the motion of a court having jurisdiction to deal with it. I concluded a contempt had been committed.

The juror admitted her contempt and was committed to prison for 8 months. The former defendant denied wrongdoing but, after a brief trial, was found also to be in contempt – she too was committed for 2 months, although in her case the order was suspended for 2 years as she had been on remand for some months before the trial of the original matter.

The case highlighted important principles and again that the internet does not provide some form of immunity from prosecution. Jurors must feel able to openly express their views and opinions to their fellow jurors without fear that they will be subjected to public exposure and possible ridicule or disgust. This prevents juries from being inhibited as they discuss the merits of the evidence which they have heard. It is essential that the sanctity of the jury room is preserved.

The revolution in methods of communication cannot change what the Lord Chief Justice has termed 'essential principles' and that is why contempt proceedings will be brought by me when required.

Here is the Evening Standard's take, the Guardian, and the Daily Telegraph.

This isn't just about speech making. Last week, he applied to the High Court for permission to bring contempt proceedings against Theodora Dallas, a juror in a trial at Luton Crown Court. Ms Dallas was told by the trial judge not to conduct research on the internet. The case she was trying, which involved three defendants charged with causing grievous bodily harm, was discharged and a retrial ordered. Apparently, she deliberately looked up information about one of the defendants, a court was told last week.

As the Telegraph reports, Louis Mably, counsel for the Attorney-General, said: “Next day, when the jury retired, she informed other members of the jury. Her conduct was reported to the court and the judge discharged Ms Dallas and the remaining jurors.”

The Telegraph also reports on an interview which is behind the Times' firewall:

In an interview with The Times Mr Grieve admitted the internet did present challenges but it was only a “lawless territory” to the extent that it made enforcing contempt laws more difficult if “people post things on the net abroad”.

He also dismissed “tittle-tattle on Twitter” as necessarily posing a problem to enforcing the contempt laws.

“Ultimately, no one thought that the contempt of court rules, even before 1981, would prevent dinner party tittle-tattle and nor should we necessarily get too exercised about that,” he said.

He added, however, that if comments went “viral” and were “reached by thousands or millions of people accessing a particular site or blog then of course we are going to be exercised about it”.

Mr Grieve said: “Judges have been given directions to jurors for a long time not to discuss cases with those who are outside the jury room. We know that long before the internet some failed in their duty occasionally and were punished for it.”

I am unaware of any of the Canadian Law Officers of the Crown having spent this much time thinking about these issues.

The European Court of Justice issued its breathlessly awaited (at least by some) decision in SABAM v. Scarlet today, striking a serious blow to those imposing intense international pressure with the objective of securing exceptional enforcement for intellectual property rights online. These efforts aim to leverage Internet intermediaries such as ISPs, hosting sites, domain name registrars and even individual blogging sites in order to stomp out any infringing activity occurring on the platforms they operate.

As these intermediaries process and host vast amounts of online conduct, they are uniquely placed to impose unprecedented levels of monitoring and control onto users in order to find and prevent ‘undesirable’ activity. A number of recent endeavours such as the French HADOPI framework and the US proposed ‘Stop Online Piracy Act’ initiative have sought to force various intermediaries to participate more actively in protecting intellectual property rights. Often this involves mechanisms to wipe (allegedly) infringing sites or users from the Internets. Many have argued this poses a threat to online innovation, freedom of expression and privacy.

In SABAM, the EU Court of Justice examined a narrower question that nonetheless touches on many of these same issues and the overall ‘balance’ between the need to protect IPRs while ensuring other rights are not trampled in the attempt to do so. SABAM, a rights holder group, had asked the Belgian court to issue an injunction obligating an ISP, Scarlet, to filter all unauthorized peer-to-peer file-sharing transfers of its works. The EU has an overarching legal framework, set out in a number of Directives, that provide guidance on the appropriate scope of liability for Internet intermediaries. Most salient for this case, the EU intermediaries frameworks permits a court to issue injunctions as a remedy for IPR infringement. The Belgian court that first heard the matter was willing to issue such an injunction and this ruling constitutes Scarlet’s appeal to the EU Court of that decision.

The injunction in question would have required Scarlet, the ISP, to monitor all activity on its network, filtering for hash tags of files identified as within the repertoire of the plaintiff. While the technical feasibility of this filtering exercise has been questioned, the Court rested its decision to overrule the Belgian court’s injunction on firmer, more principled grounds. Specifically, the Court found that an injunction of this character violates the rights to privacy and potentially the right to receive or impart information:

51 It is common ground, first, that the injunction requiring installation of the contested filtering system would involve a systematic analysis of all content and the collection and identification of users’ IP addresses from which unlawful content on the network is sent. Those addresses are protected personal data because they allow those users to be precisely identified.

52 Secondly, that injunction could potentially undermine freedom of information since that system might not distinguish adequately between unlawful content and lawful content, with the result that its introduction could lead to the blocking of lawful communications. Indeed, it is not contested that the reply to the question whether a transmission is lawful also depends on the application of statutory exceptions to copyright which vary from one Member State to another. Moreover, in some Member States certain works fall within the public domain or can be posted online free of charge by the authors concerned.

53 Consequently, it must be held that, in adopting the injunction requiring the ISP to install the contested filtering system, the national court concerned would not be respecting the requirement that a fair balance be struck between the right to intellectual property, on the one hand, and the freedom to conduct business, the right to protection of personal data and the freedom to receive or impart information, on the other.

The Court also issued a friendly reminder that, while protection of Intellectual Property is a right protected by the EU Charter, there is “nothing whatsoever in the wording of that provision or in the Court’s case-law to suggest that that right is inviolable and must for that reason be absolutely protected.”

Notably, the decision equates ‘filtering’ — where network equipment such as deep packet inspection equipment is calibrated to search for specific files or activities, in this case, likely hash tags — with mass monitoring of user activity. Common counter arguments to this are that ‘filtering’ does not involve mass surveillance, because only the specifically sought infringing activity is identified, while little or no information about other activity is collected. The Court appears to accept, however, that mass monitoring for infringing activity is a serious invasion of privacy even where the only results it yields are to identify infringing works.

Second, the decision is notable in that it recognized the threat to freedom of expression posed by a filtering system of this kind, which is likely to capture legal content along with allegedly infringing content. Indeed, as the Canadian experience has proven, identifying specific files or even applications mid-network while avoiding over-inclusiveness is no easy task! It is greatly complicated where user rights such as fair dealing or fair use complicate what is ‘legal’ and what is not.

The decision is not likely to be the last word on the issue. US legislatures are struggling with a law that will permit entire domain names to be wiped from the DNS system on allegation of IP infringement and it is not clear how this decision will impact on France’s HADOPI ‘3 strikes and you’re out’ system, or on the UK Digital Economy Act’s objective of implementing a similar graduated response regime (the UK act is also under court challenge).

The decision could have implications for Canadian copyright enforcement. While Canadian copyright law (inclusive of coming amendments in Bill C-11, the Copyright Modernization Act), does not envision liability for ISPs for infringing activities of users such as file-sharing, injunctions against ISPs similar to that raised in SABAM are available under Canadian law.

Given our Court’s recent willingness to take into account Charter rights in the development of common law protections in general, there is hope that freedom of expression and privacy will guide any application of this injunction power. Further, as intellectual property rights (or even regular property rights) are excluded from our Charter, countervailing rights of expression and privacy should weigh more heavily in the balance than in the EU.

While many of our ISPs already track use of file-sharing applications voluntarily, in order to carry out their traffic management policies, this should not mean privacy expectations are diminished in any way. To begin with, the type of monitoring envisioned in SABAM is more intrusive than that currently carried out by Canadian ISPs. Current ISP practice is to filter for metrics in order to identify specific applications (BitTorrent clients, for example) while SABAM required filtering of specific files. (The middle case — filtering to block an entire website or service such as Pirate’s Bay or Newzbin2 deemed to be ‘infringing’, has been tentatively approved by UK courts.) Second, the CRTC, in carrying out the privacy-protection component of its mandate, has ordered Canadian ISPs to refrain from using information gained from traffic management practices for any other purpose. These two conditions, taken together, should bolster privacy expectations Canadians can reasonably advance in this context, if the issue were to arise.

Second, our Supreme Court has a solid track for protecting online innovation and freedom of expression and adopting a balanced approach to copyright enforcement.

On November 8, 2011, the High Court of England and Wales ruled that a Catholic priest qualified as an employee of his diocese, thus exposing the diocese to vicarious liability for clergy sex abuse.

The case of JGE v. (1) The English Province of Our Lady of Charity and (2) The Trustees of the Portsmouth Roman Catholic Diocesan Trust was filed by a woman who is now 47 years old and claims that between 1970 and 1972, when she was a child, a priest abused and raped her. It is important to note that the priest alleged to have done this, Father Baldwin, is now dead and so could neither be sued nor defend himself.

The question at a preliminary hearing for the High Court was whether the Diocesan Trust could be vicariously liable for the acts of this priest (assuming that the claimant will be able to prove her allegations). This question depended in part on whether the relationship between the priest and the trust was akin to employment. In general, employers can be held vicarious liable for the acts of their employees in the course of employment. If the employer is found to be vicariously liable, monetary redress is awarded to the victim, and employers are encouraged to take care in hiring and appointing staff.

Traditionally, however, British law has not considered Catholic priests as employees of their Dioceses; instead, they have been regarded as "office holders" or, simply put, independent contractors. Why? The Diocesan Trust does not have supervisory control over priests, and a priest cannot sue for unjust dismissal if he is removed from his parish, among other things.

The judge admitted that the relationship between the priest and the defendants was not like a regular employment contract, but in this case, he opted to look at certain special factors, including the nature and closeness of the relationship between the priest and the defendant, and the connection between the tortious act and the purpose of the relationship/employment/appointment, which was based on the factors outlined below.

The main principles of the judgment are stated in paragraphs 35–36:

35 I am satisfied, as I have already noted, that the relationship between Father Baldwin and the Defendants was significantly different from a contract of employment; no real element of control or supervision, no wages, no formal contract and so on. But are those differences such that the Defendants should not be made responsible for the tortious acts of the priest acting within the course of his ministry? There are, it seems to me, crucial features which should be recognised. Father Baldwin was appointed by and on behalf of the Defendants. He was so appointed in order to do their work; to undertake the ministry on behalf of the Defendants for the benefit of the church. He was given the full authority of the Defendants to fulfil that role. He was provided with the premises, the pulpit and the clerical robes. He was directed into the community with that full authority and was given free rein to act as representative of the church. He had been trained and ordained for that purpose. He had immense power handed to him by the Defendants. It was they who appointed him to the position of trust which (if the allegations be proved) he so abused.

36 Why, one may ask, does it matter that some of the features of a classic contract of employment do not apply here? What is the relevance to the concept of vicarious liability, for example, of the lack of a formal agreement with terms and conditions; or of the manner of remuneration; or of the understanding that the relationship was not subject to adjudication by the secular courts? Those features may have relevance in a different context, but not to the question of whether, in justice, the Defendants should be responsible for the tortious acts of the man appointed and authorised by them to act on their behalf.

This decision allows the case against the diocese to proceed. However, permission has been granted for appeal of this ruling to the Court of Appeal.

In deciding whether vicarious liability exists, the full nature of the relationship between the parties must be considered. This decision confirms that courts are beginning to take a more flexible approach to vicarious liability arguments, at least in the United Kingdom. What will happen if the claimant succeeds? Will the ruling open the door for others to claim vicarious liability against organizations whose independent contractors do wrong? Maybe in specific cases, but probably not for all.

In this case, the relationship between the priest and the diocese, while not enshrined in an employment contract, and lacking certain typical qualities, actually resembles a traditional employment relationship in many more ways than usual employer-contractor relationships. One thing in particular: it's hard to underplay the importance of the position of a priest dedicated to his church: he is effectively beholden to one employer, despite the availability of numerous individual congregations. He could not simply switch denominations—by his own vows. In other words, despite his official status as an independent contractor, it might be hard to argue his independence.

Another important consideration is the relationship a priest has with his parishioners. He holds a position of the utmost trust and responsibility. He has direct and frequent contact with persons of all ages to whom he represents the highest good. Few other independent contractors have such a position.

So, regardless of the decision, the ruling will likely only apply in certain, very specific cases.

Interestingly, the UK case draws precedent from a Canadian Supreme Court Case, Doe v. Bennett and others (2004), in which a bishop was found vicariously liable for the actions of a priest who had committed acts of abuse against young boys in his parish. The facts of that case were not equivalent to the UK case, mainly in that the employment relationship between the Canadian bishop and the priest was different from that between the British diocese and the priest. So we'll wait and see what the results of the present case are, and whether they influence Canadian jurisprudence.

Yesterday police cleared out the protests in New York for Occupy Wall Street. The same day, the National Lawyers Guild (NLG) received a court injunction allowing the protesters to return. A copy of the injunction can be found here.

Coincidentally I was on The Agenda with Steve Paikin last night talking about whether we should be evicting protesters from our parks. You can see the episode here.

A press release from the NLG New York City Chapter is available here.

There's an old saying among lawyers (and law profs) that claims "you can't suck and blow at the same time." But it would seem that inventor Sir James Dyson is managing to expel steam from his ears even while his vacuum cleaners continue to inhale a decent share of the "hoover" market. The reason for his turbulence is that his share has been somewhat lessened in Britain thanks to a recent decision of the court of appeal for England and Wales. In Dyson Ltd v Vax Ltd [2011] EWCA Civ 1206 the court decided not to overturn a trial judgment that Vax's Mach Zen C-91 MZ vacuum cleaner did not infringe Dyson's registered design.

The language around which the issue was argued comes from (EU) Designs Directive 98/71:

… A design shall be protected by a design right to the extent that it is new and has individual character…

A design shall be considered to have individual character if the overall impression it produces on the informed user differs from the overall impression produced on such a user by any design which has been made available to the public before the date of filing of the application for registration or, if priority is claimed, the date of priority

In assessing individual character, the degree of freedom of the designer in developing the design shall be taken into consideration.

…A design right shall not subsist in features of appearance of a product which are solely dictated by its technical function…

The scope of the protection conferred by a design right shall include any design which does not produce on the informed user a different overall impression.

In assessing the scope of protection, the degree of freedom of the designer in developing his design shall be taken into consideration.

The court of appeal found no error in the trial judge's conclusion that an "informed user" would find significant differences in the designs of the two machines. Indeed, Sir Robin Jacob, writing the first judgment, said he would have come to the same conclusion:

An informed user looking at the two designs would indeed notice the difference between them because the overall impressions are different: "smooth curving and elegant" versus "rugged angular and industrial." These are different designs

I find it interesting that in assessing similarities and differences, the court hears argument as to particular features and puts itself in the position of the "informed user" to make the judgment, much, I suppose, as it would when the standard is the "reasonable person." Yet a conclusion under the latter standard is, of course, a policy statement in some measure as to appropriate social conduct; whereas, the former standard seems to me, at least, to invite—indeed, beg for—actual evidence from actual informed users. I'd be interested to learn whether any of the judges used the machines in question, handled them, saw them in various settings, etc. My guess is not. There's something… funny (both "peculiar" and "ha ha") about a Lord Justice Jackson and a Lady Justice Black opining on a tool that they'd be better off asking their charlady about.

But in case you'd like to venture an opinion yourself, expert or inexpert, you can consult a number of photographs of the two machines in similar poses at the end of the appeal judgment, only two of which are reproduced here (the Dyson is on the left; click on an image to enlarge it):

And the steam coming out of Sir James's ears? Dyson had won a case in France against the same Chinese-owned company with respect to the same machine. He's quoted as saying after the court of appeal judgment:

[I]t is galling and mind-boggling. There is something very off when we get support from the French courts but not from the British. We need to better protect British design.

What are you doing at 6:00 PM (ET) on Monday, November 14, 2011? If you're in Toronto, consider coming to Fraser Milner Cagrain at 77 King Street West to hear Human Rights Adjudication in the 21st Century, a talk by Timothy Endicott, Dean of the Faculty and Professor of Legal Philosophy (for Lawyers and Non-Lawyers alike)

The timetable is 6pm Wine and Cheese Reception, 6.45pm Talk and Discussion. $20 at the door but please let us know if you're on the fence so we know how many to cater for. Here is the log-in.

Timothy Endicott is a Canadian lawyer who has been (the first) Dean of the Faculty of Law at Oxford since October 2007. He is a Fellow in Law at Balliol College, and has been a Professor of Legal Philosophy since 2006. Professor Endicott writes on Jurisprudence and Constitutional and Administrative Law, with special interests in law and language and interpretation.

He is the author of Vagueness in Law (OUP 2000), and Administrative Law (OUP 2009). After graduating with the AB in Classics and English, summa cum laude, from Harvard, he completed the MPhil in Comparative Philology in Oxford, studied Law at the University of Toronto, and practised as a litigation lawyer with Oslers in Toronto.

Twenty bucks will get you the reception and Timothy's talk. Register here. While initially aimed at Oxford and Cambridge graduates, others

The issue he'll be discussing is very hot in England. Are human rights ultimately a matter of domestic law or community law? And are they a matter for Parliament or European judges?

Those who've been following the recent legal news will have seen the remarkable disagreement between Dominic Grieve the Attorney General and the Home Secretary Theresa May on the role of the Strasbourg Court, with reference to a tabloid created fictitious story about a refugee claimant who established a claim by having a cat in the family. Grieve will be arguing before the full court in the Italian prisoners' voting case. He gave a remarkable (and by North American standards nuanced and articulate) speech at LIncoln's Inn. Ed Bates has a good blog commentary here.

The primary responsibility for guaranteeing and protecting human rights within a country rests with that country's own institutions – its government, its legislature and its courts.

That is a long-accepted principle of human rights law. When the European court decides that a state has denied rights to individuals within its jurisdiction, the state itself is responsible for deciding how to repair the breach.

Subsidiarity was the theme of a lecture delivered at Lincoln's Inn on Monday night by the attorney general, Dominic Grieve. As he explained the term, it means that the primary responsibility for guaranteeing and protecting human rights within a country rests with that country's own institutions – its government, its legislature and its courts.

It is also at work in the "margin of appreciation", which is the latitude – or room for manoeuvre – that governments are given when securing human rights. As the European judges often say, they are less well placed than a country's own authorities to evaluate its needs.

This week, though, the British government has subtly extended the meaning of subsidiarity. If the new definition is accepted, the term will no longer mean the latitude given by the court to a government. It will mean the lack of latitude given by the government to the court. Some cases will never get to the Strasbourg court at all.

The second disagreement is even more remarkable. The lord chief justice Lord Judge has said that UK courts are not bound by rulings of Strasbourg-based court of human rights, while the President of the Supreme Court has admitted that his court is not always "supreme" because it has to follow the lead of the European court of human rights in Strasbourg, whose rulings are sometimes too narrow in scope. Lord Judge was giving evidence to the Lords Constitutional Committee, when he said that the UK need only “take account” of the decisions of the European Court of Human Rights but not necessarily follow it.

Tim will be talking about an issue whose time has clearly come.

A few days ago, Antonio Cassese, a renowned international war crimes expert, died at his home in Florence, Italy at the age of 74.

A well-known professor of international criminal law, he was appointed in 1993 as a judge on the International Criminal Tribunal for the Former Yugoslavia, based at the Hague. It was the first international criminal tribunal since the ones that followed World War II.

Among his early decisions, seen as controversial at the time but widely accepted since, were several that changed basic precepts of international criminal law. One was that war crimes could be punished not only in wars between nations, but also in conflicts within a particular country. In another, he wrote that even if there was no war going on, massacres, torture and other atrocities committed by governments or groups could be found to be crimes against humanity and punished accordingly.

In 2009, he became president of the Special Tribunal for Lebanon established by the United Nations to try the alleged assassins of former Lebanese prime minister Rafiq al-Hariri, who was killed in 2005 in a car bomb attack in Beirut.

Here is a list of his many writings from the Worldcat catalogue.

This past weekend, the State of California passed legislation banning minors from using tanning beds. This law will take effect on January 1, 2012. This is the most restrictive law on the use of indoor tanning beds in the United States (other states have some restrictions on the use, but no outright ban). Law-makers cite health concerns associated with this activity to justify the legislation.

Prior to this law, minors between the ages of 14 and 17 had to get parental consent before being able to use tanning beds, with the activity prohibited for those under the age of 14.

While health associations praise this legislation, those representing the interests of tanning salons explain that this law will hurt businesses, leading to job cuts.

While this news may seem insignificant to some, I certainly find it interesting from a state intervention perspective. Should the state be passing such laws? At what age is a person old enough to decide if this is an activity he or she wants to participate in? Is this law enough to actually end the practice among minors? See here for a Slaw posting from last year raising similar concerns. State and provincial laws ban the sale of alcohol and tobacco to minors, yet it is no secret that many under the age of 18 partake in such activities. In some ways, the tanning debate has larger social implications, when this activity may lead to serious health problems (this is concern is especially true in Canada where medicare (and ultimately taxpayers) would be responsible for paying for these treatments). I guess there is always the sun to turn to…

Fenerbahçe S.K. is a football club based in Istanbul; aka the Yellow Canaries. Fenerbahçe are defending league champions in the Turkish Süper Lig. On July 21, 2011, Fenerbahçe's fans rushed the field in a protest against perceived slights of the team by the media. As you might be aware international football has been plagued with fan violence in recent years and football's governing bodies have taken steps to punish teams where such violence has taken place. In response to the incident on July 21, the Turkish FF (TFF- Türkiye Futbol Federasyonu) sentenced Fenerbahçe to a closed door match, or that they must play a match with no fans in attendance. The TFF then altered it's decision to allow only women and children under 12 to attend the match. The match was held September 20th and by all accounts it was a success as over 41,000 women and children filled Şükrü Saraçoğlu Stadium to witness Fenerbahçe draw 1-1 with Manisaspor. To quote the Hurriyet Daily News story: "There were 50,000 canary chirps, 50,000 stories in the stadium. It was so beautiful."

Initially, there was some conjecture as to whether such an event might be considered illegal under the constitution but such conjecture dissipated and in light of the rousing success of this match Fenerbahçe is moving forward with plans to limit a certain section of the stadium, comprising 470 seats, to women only. From the Guardian: "The match was considered such a success – with a less confrontational atmosphere and generous support for the opposition team – that the club has decided to set up the women-only area for a trial spell."

Given the conjecture referred to above I thought it would be interesting to look at the Turkish Constitution which states in the General Principles:

Article 10 Equality before the Law

(1) All individuals are equal without any discrimination before the law, irrespective of language, race, colour, sex, political opinion, philosophical belief, religion and sect, or any such considerations.

(2) Men and women have equal rights. The State shall have the obligation to ensure that this equality exists in practice.

(3) No privilege shall be granted to any individual, family, group or class.

(4) State organs and administrative authorities shall act in compliance with the principle of equality before the law in all their proceedings.

The Turkish Constitution also mentions women's rights in Chapter III – Social and Economic Rights and Duties:

Article 50 Working Conditions and Right to Rest and Leisure

(1) No one shall be required to perform work unsuited to his age, sex, and capacity.

(2) Minors, women and persons with physical or mental disabilities, shall enjoy special protection with regard to working conditions.

(3) All workers have the right to rest and leisure.

(4) Rights and conditions relating to paid weekends and holidays, together with paid annual leave, shall be regulated by law.

.

However; this does not mean that equal rights necessarily flourish in Turkey as a Turkish Journalist has pointed out, "…there is not a single woman in the ranks of the Turkish Football Federation and that, of the 18 Turkish Super League clubs, only two have a woman on their boards". The sections of the constitution mentioned above were inserted in 2004; in 2002 the Turkish Civil Code abolished the supremacy of men in marriage. As Women for Women's Human Rights (a Turkish NGO) eloquently puts it: "Individuals need to internalize and develop a critical understanding of their rights before they can embrace and exercise them "; (follow the preceding links for more information). Nonetheless, a small step was made in Instanbul last week when Fenerbahçe S.K hosted a unique match.

One of the most fundamental of human rights is the right to participate in the making of the laws that govern you; and the basic right behind that is the right to vote. This might seem so clear to us now that it needs no mention, but equally clearly that hasn't always been the case, one of the glaring illustrations being the relatively recent nature of women's suffrage. Canada allowed women the vote only in 1917; the United States in 1920; France in 1944; and Switzerland in 1971. (There's a good chart on Wikipedia that let's you sort by country, by date, or by voting age.)

However, in the last fifty years or so, all countries in the world with the exception of Saudia Arabia extended the vote to women. Now King Abdullah has stated that he intends to take that step in time for the 2015 elections.

It remains the case, however, that women in that country are not permitted to drive automobiles, may not leave the country without the permission of a male relative, and may be flogged for committing adultery.

Original photo: National Geographic

Texas, it seems, has a problem with barratry. What, you may ask, is barratry? It is — or once was — a crime, a tort, and an act of professional misconduct. And if you were unclear about all that, you're in good company. The former Associate Chief Justice of Ontario confessed in McIntyre Estate v. Ontario (Attorney General), 2001 CanLII 7972 (ON CA) that, "I include myself among those who had never heard of the tort of barratry until I read the material on this motion." He went on to explain:

[23] Barratry is related to, but clearly different from, champerty and maintenance. Barratry is defined in Black’s Law Dictionary, 7th ed. (St. Paul: West Publishing, 1999) as “[t]he offence of frequently exciting and stirring up quarrels and suits, either at law or otherwise”. According to Black’s, barratry is also “a crime in most jurisdictions”.

[24] By contrast, champerty refers to a bargain between a stranger and a party to a lawsuit by which the stranger pursues the party’s claim in consideration of receiving part of any judgment proceeds. The difference between champerty and barratry appears to be that while champerty is purely self-interested, barratry requires the additional intent to harm the third person: “… if the design was not to recover his own right, but only to ruin and oppress his neighbour, that is barratry”. See Words and Phrases Judicially Defined, Vol. I (London: Butterworth & Co., 1943).

[25] Maintenance is further distinguished from barratry and champerty on the basis that it appears to be motivated by altruism. That is, it requires a person to “lay out money on behalf of another in suits at law to recover a just right, and this may be done in respect of the poverty of the party; but if he lends money to promote and stir up suits, then he is a barrator”. Words and Phrases, supra.

To put it crudely — and as it refers to the conduct of lawyers — barratry is ambulance chasing, champerty is contingency fees, and maintenance is relatively rare.

The Texas law (the text is here) is interesting not only for what it reveals about the business climate for lawyers but also because it provides for a civil remedy, creating a cause of action for persons harmed by the barratry, among whom are often, it would seem, lawyers who have had clients "stolen" away from them.

Contingency fees were permitted in Ontario, at least, as of 2004. The old crimes of B, C, & M were abolished in Canada some sixty years ago. And the existence of the torts is in doubt. (See Maureen Boldt v. The Law Society of Upper Canada, 2010 ONSC 3568.) I'm not well-enough plugged in to the roil of practice to know how things stand as regards unethical practice.

Mirela and her staff at NYU have kindly uploaded my updates to my Researching Canadian Law Guide on their GlobaLex website.

Updated guides have also been added for Bhutan, Latin America, Kenya and Sweden.

I regularly use these foreign law guides (along with the international law guides) when doing international and foreign legal research.

In the age of social media like Facebook and Twitter, school administrators are asking whether such electronic communication is appropriate between students and teachers. They are wondering where boundaries for such communication should be placed. Many school boards are choosing a strict path, forbidding or restricting any communication via social media between students and teachers.

Recently, the Missouri state legislature attempted to block contact between students and former students under age 18 and their teachers via social networking sites that provide “exclusive” access (a private, one-on-one means of communication). The overall goal of this law, the Amy Hestir Student Protection Act, enacted on July 14, 2011, is to protect school-aged children from sexual predators at school.

The ban reads like this:

No teacher shall establish, maintain, or use a work-related internet site unless such site is available to school administrators and the child's legal custodian, physical custodian, or legal guardian.

No teacher shall establish, maintain, or use a nonwork-related internet site which allows exclusive access with a current or former student.

The idea is to discourage teachers and students from communicating exclusively, without a parent, guardian or school administrator being able to access the message.

Republican State Senator Jane Cunningham, who sponsored the bill, told Huffington Post, "We are by no means trying to stop communication, just make it appropriate and make it available to those who should be seeing it," Cunningham said. "Exclusive communication is a pathway into the sexual misconduct."

Civil liberties groups and educators challenged this government initiative, and at the end of August 2011, a Missouri court granted a temporary injunction against the law’s enforcement, insofar as it affected teacher-student communications. According to Justia.com, the judge reasoned that the ban would chill free speech, and likely violate the First Amendment of the United States Constitution.

Missouri Governor Jay Nixon called for the state legislature to repeal the provisions of the law concerning student-teacher communications and come up with a better alternative. This new alternative would discard the social media ban, and instead would leave it up to school districts to come up with their own policies to “prevent improper communications” between school employees and students, including on electronic media. School districts will be allowed an extended deadline—March 1, 2012, instead of January 1, 2012—by which to adopt the new policies.

Read Legal Professor Anita Ramasastry’s strong argument in support of the judge’s injunction and her analysis of this new alternative.

Although this case is currently being debated in the United States, it is a topic of interest for all countries including Canada.

The Ontario College of Teachers’ regulatory board forbids its members from accepting Facebook friend requests from students. The "Professional Advisory on the Use of Electronic Communication and Social Media" outlines appropriate conduct for electronic messages, complete with explanations of criminal and civil law implications. Teachers are instructed to only communicate with students electronically during "appropriate times of the day and through established education platforms.”

Moreover, teachers must decline student-initiated online “friend requests” and never initiate a friend request with a student. They must understand that they are, in some ways, always on duty and bound by standards of conduct. The board asserts that when a teacher and a student become friends in an online environment, the dynamic between them is forever changed. An invisible line between professional and personal is crossed, which can lead to strictly forbidden informal conversations.

With the new advisory in place, teachers must know that if they post inflammatory comments via social media, they could find themselves in the unemployment line.

Note: the use of social media in the classroom is not prohibited. Teachers can continue to use social media to foster learning opportunities in class.

Ontario Teacher and educational technology blogger, Graham Whisen, takes a positive view:

The teacher-student relationship has always been one in which the teacher guides students through a process of discovery and learning. If social media supports this process, then why is it so inappropriate?

Social media allows teachers to reach students using the communication tools they use daily. It breaks down the walls of the classroom, showing students that learning happens everywhere and at all times. It allows students to collaborate together and facilitates communication. Most importantly, it connects students with each other and encourages them to have meaningful conversations about their learning.

However, Whisen doesn’t say precisely where he stands on teachers communicating with students via social media.

I’ve no doubt that this debate will continue for some time. And so it should—in public.

The advance of mobile technology and social media has opened up new channels of communication that are at least as common as email, and more ubiquitous. We’ve already accepted social media into our classrooms. Prohibited or not, it seems a foregone conclusion that students and teachers will use the new channels to communicate with each other. Student-teacher relationships can’t help but be affected by these cultural changes.

It remains to be seen whether these measures protect students from teacher predators or inappropriate relationships. While regulations are certainly important to warn and deter teachers from acting improperly and to describe disciplinary policy, teachers must make sure they act in a manner that befits their position. Responsible teachers can teach students how to act responsibly, in social media and everything they do.

Lawyers from the Center for Constitutional Rights have filed a complaint on behalf of SNAP, a survivor support group, at the International Criminal Court (ICC) alleging that senior Vatican officials – including the current Pope – have committed crimes against humanity on the basis that "Vatican officials tolerate and enable the systematic and widespread concealing of rape and child sex crimes throughout the world."

The 84-page complaint is available here (PDF) and makes for interesting, if not depressing, reading. Included in the complaint as part of the factual background is an overview of the abuse that has occurred in Canada, Ireland and the United States.

A New York Times story about this filing suggests, perhaps correctly, that it is "unlikely the complaint against the Vatican would fit the court’s mandate to prosecute war crimes, crimes against humanity and genocide."

Nonetheless, the allegations raise serious issues and it will be interesting to see if the ICC will assume jurisdiction and open a file and investigate the allegations.

The European Court of Justice has issued a ruling in Case C‑442/09 Bablok et al v. Freistaat Bayern (Monsanto intervening) that might well cause difficulty for food producers and for Monsanto, the owner of patents to many genetically modified organisms used or sold in the food chain. The plaintiff, a beekeeper, sued the Bavarian state for compensation because pollen from a government owned test field of Monsanto's GM corn (maize) found its way into his honey, polluting it.

The court agreed that the trace amounts of pollen from the Monsanto corn, even though the pollen was no longer alive or capable of propagating living organisms, made the honey containing it a product containing a GMO. It also found that labelling regulations using a "tolerance threshold of 0.9% per ingredient" should not be applied by analogy to limit a regulation that requires governments to ensure the safety of products containing even small amounts of GMOs and that it didn't matter whether the GMO was introduced into the food product deliberately or accidentally. The Monsanto corn in question had previously been approved as safe for human consumption.

The ruling and the somewhat uncertain state of the law in Europe about GMOs are discussed briefly in articles in the Guardian and EurActiv.

Justice Secretary Kenneth Clarke announced today that Bills will shortly be introduced in Parliament to overturn prohibitions on cameras in the courtroom.

The media will only be allowed to film judges’ summary remarks only – victims, witnesses, offenders and jurors cannot be filmed.

Filming and broadcasting in court is currently banned under two Acts of Parliament and new legislation will need to be passed to allow cameras into the courts.

The Guardian reports that Clarke had intended to consult with senior judges but in recent days Downing Street had moved to circumvent this consultation process and support the change, whatever the judges thought.

In addition to allowing broadcasting, Mr Clarke announced that an unprecedented level of information about the performance of courts will be published in future to allow everyone to see how their local courts are working. This will include:

Court-by-court statistics for the time taken for cases to be processed, from offence to conviction, allowing people to compare the performance of their local courts

Details on how many trials were ineffective and why they were ineffective

Anonymised data on each case heard at local courts and the sentences given

Details of how many people have been convicted or released from prisons in each area and how often they re-offended afterwards

From next May justice outcomes will be placed alongside crime data on police.uk so people can see what happens next after crimes are committed in their areas

More information on how the civil and family justice systems, including how long it takes each court to process small claims hearings, larger cases and care proceedings.

They'll be having a bonfire with Reporting Restrictions in the Crown Court.

The new rules will apply in Wales. No solace to Gavin Hughes, who in April 2003, sitting in the public gallery of Merthyr Tydfil Crown Court, found himself in the dock after a police officer witnessed him taking a photograph of a defendant in the court using his mobile phone. He was brought before the judge and fined £250 for contempt of court. He apologised and explained that "I hadn't seen my friend for a while, so I took a photo of him for myself and to show his wife". Snapping the goings on in Merthyr Tydfil Crown Court will still be an offence unless he snaps the judge while summing up.

Not everyone is overjoyed at the prospect: Charles Harris, last year's president of the Council of Circuit Judges, also told BBC's Today:

A trial is actually an entity of various parts, and you can't legitimately split it up into bits and pieces.

What about a defendant who doesn't agree to [filming], is sentenced in the full light of publicity and then appeals and is acquitted?

Tory MP Roger Gale said

it risked turning justice into a reality show and providing a platform for "eccentric" legal professionals. Mr Gale, a former TV producer, said screening Parliament had resulted in grandstanding by MPs and a concentration on "juicy" extracts at the expense of less entertaining debates.

I believe that the televising of the closing speeches in law courts and the passing of sentences will create the same effect as thrusting barristers seek to impress the media with fee-improving performances and the more eccentric members of the judiciary use the TV platform to address the nation," he said.

The courts are supposed to be a place where justice is done and where it is, by those actually present and listening to the evidence, seen to be done. That must not be allowed to change. This is not about transparency or democracy, it is about television showbusiness and we do not need our law courts to be turned into yet another reality TV show."

England has more eccentric members of the judiciary than Canada – His Honour James Pickles and Mr. Justice Cocklecarrot come to mind immediately.

The 1925 Criminal Justice Act states:

41 Prohibition on taking photographs, &c., in court.

(1)No person shall—
(a)take or attempt to take in any court any photograph, or with a view to publication make or attempt to make in any court any portrait or sketch, of any person, being a judge of the court or a juror or a witness in or a party to any proceedings before the court, whether civil or criminal; or
(b)publish any photograph, portrait or sketch taken or made in contravention of the foregoing provisions of this section or any reproduction thereof;and if any person acts in contravention of this section he shall, on summary conviction, be liable in respect of each offence to a fine not exceeding fifty pounds.
(2)For the purposes of this section—(a)the expression “court” means any court of justice, including the court of a coroner:(b)the expression “Judge” includes . . . F38, registrar, magistrate, justice and coroner:(c)a photograph, portrait or sketch shall be deemed to be a photograph, portrait or sketch taken or made in court if it is taken or made in the court–room or in the building or in the precincts of the building in which the court is held, or if it is a photograph, portrait or sketch taken or made of the person while he is entering or leaving the court–room or any such building or precincts as aforesaid.

The Contempt of Court Act 1981 states:

9 Use of tape recorders.

(1)Subject to subsection (4) below, it is a contempt of court—
(a)to use in court, or bring into court for use, any tape recorder or other instrument for recording sound, except with the leave of the court;
(b)to publish a recording of legal proceedings made by means of any such instrument, or any recording derived directly or indirectly from it, by playing it in the hearing of the public or any section of the public, or to dispose of it or any recording so derived, with a view to such publication;
(c)to use any such recording in contravention of any conditions of leave granted under paragraph (a).
(2)Leave under paragraph (a) of subsection (1) may be granted or refused at the discretion of the court, and if granted may be granted subject to such conditions as the court thinks proper with respect to the use of any recording made pursuant to the leave; and where leave has been granted the court may at the like discretion withdraw or amend it either generally or in relation to any particular part of the proceedings.
(3)Without prejudice to any other power to deal with an act of contempt under paragraph (a) of subsection (1), the court may order the instrument, or any recording made with it, or both, to be forfeited; and any object so forfeited shall (unless the court otherwise determines on application by a person appearing to be the owner) be sold or otherwise disposed of in such manner as the court may direct.
(4)This section does not apply to the making or use of sound recordings for purposes of official transcripts of proceedings.

A U.S. court has decided that a bank whose client lost money because someone hacked into its account and transferred funds out of it, was not liable to the client because the bank had used ‘commercially reasonable’ security. The case is described on the Goodwin Proctor website. The lengthy decision of the Judge Magistrate in Patco Construction v People’s Bank, later upheld, is available online. .

Is this the right standard of care for negligence? Does it matter that the bank is regulated strictly under the Bank Act? Does it matter that the U.S. bank could rely on Article 4A of the Uniform Commercial Code (on electronic funds transfers), which has no equivalent in Canada?

‘Commercially reasonable’ security clearly does not mean unbreakable security. How else should one draw the line to set a fair allocation of risk between bank and client?

Back in April, Apple filed suit in California against Samsung for patent violation, claiming that the latter's Galaxy line of phones and tablets bore too much resemblance to its own iPhones and iPads. This is a tangled matter, as perhaps are most patent disputes among the biggies: for one thing, Apple is a large buyer of Samsung's products, accounting for 4% of the the company's revenue last year and likely more this year. At the moment, according to Foss Patents, where you'll find a list, there are 19 ongoing lawsuits around the world between these two companies

Recently in the California suit Samsung filed material that included a brief clip from Stanley Kubrick's 2001: A Space Odyssey in order to demonstrate prior art — that the design of the iPad had, in effect, been anticipated by Kubrick. Have a look and see what you think. Here's part of the accompanying text from Samsung, again thanks to Foss Patents:

As with the design claimed by the D’889 Patent, the tablet disclosed in the clip has an overall rectangular shape with a dominant display screen, narrow borders, a predominately flat front surface, a flat back surface (which is evident because the tablets are lying flat on the table's surface), and a thin form factor.

Can't say I'm blown away by the resemblance. In fact, these seem so thin and so precisely arranged at reflex angles that at first I thought they were screens embedded within the black table; if it weren't for the tiny amount that one corner of the left device extends beyond the edge of the table, I wouldn't have been aware they were meant to be separate objects. Funny about the black and white news video.

Corruption in government and business can occur everywhere; no country is totally immune. (See, for example, Transparency International's Corruption Perception Index.) But in some countries and in some industries the demands for bribes and kickbacks or the promise of favours for favourable decisions are a serious reality. Governments that wish to halt or hinder corruption have passed anti-bribery and corruption legislation, proscribing not only corrupt acts that take place within their jurisdiction but also acts that take place ex juris if committed by their nationals or businesses incorporated within their jurisdiction. Britain's Bribery Act 2010, which came into force last month, is likely the strongest law with such a foreign reach, followed closely by the much older but vigorously enforced US Foreign Corrupt Practices Act.

Of course, companies that do foreign business are not just followed, as it were, by their own nation's laws but also find themselves governed by the law of the place where they transact. What might be customary or acceptable behaviour at home could turn out to be illicit abroad — or vice versa: mores, morals, and "must-not"s lie on a continuum, so it's not always clear where on this slope one is located. To assist those who do business in Europe, London-based CMS Cameron McKenna LLP regularly updates its "Anti-bribery and corruption laws – An international guide" [PDF] for 31 European countries. This is not detailed legal analysis but, rather, a handy chart of principal comparison points. So, for example, one item asks "Would corporate hospitality be caught?" In Switzerland the answer is:

According to Article 322octies StGB advantages to public officials are not undue when allowed by staff regulations or when they are of minor value in accordance with social custom (e.g. if a company bears the costs of a business lunch with public officials)

In the Netherlands the answer "depends upon intent." In other countries the answer is apparently, "Yes."

Comparable Canadian legislation is the Corruption of Foreign Public Officials Act S.C. 1998, c. 34, which has not been as vigorously enforced as it might be, although there are signs this may be changing : see "Importance of Anti-Corruption Due Diligence for International Transactions" by Morrison, Dixon, Sosnow & Neave; and the more recent "Canada's Corruption of Foreign Public Officials Act shows its teeth" by Paul Beaudry.

Offered in Beta from the Office of the Law Revision Counsel of the United States House of Representatives, this new website offers excellent access to the Code.

The US Code is an official consolidation of Federal US Laws by subject, and highly useful. Its various accessories, such as the indispensable Popular Name Tool make it a first resort of legal researchers. The online version, and various commercial print versions, are not considered official for US courts. However, this particular online version will likely be the most up to date version of the code, given its provenance.

These are notes are from a panel discussion session at the American Bar Association 2011 conference in Toronto on Saturday, August 6, 2011. Panelists included Dr. Paolo Balboni, Director, European Privacy Association, Milan, Italy; the Honorable Julie Brill, Commissioner, Federal Trade Commission, Washington, DC; Stuart Ingis, Venable LLP, Washington, DC, and Jennifer Stoddart, Privacy Commissioner of Canada, Ottawa, Canada. The session was moderated by Saira Nayak, Nayak Strategies, Redmond, WA. Note: these are my selected notes from this session; any inaccuracies or omissions are my own. I welcome your comments and follow-up thoughts!

Introduction

Can Self Regulation help?

Is Self Regulation really a part of a framework?

Key elements of Self Regulation:

• clear & consistent standards
• accountability – internal and external
• organizations should be accountable (found in APEC, European, OECD and PIPEDA frameworks)
• CIPL (Centre for Information Policy Leadership) also identified accountability as important
• accountability agents and third part audits
• individual user acces
• Safe Harbor provisions used to incentivize
• consumer education

Self Regulatory Organizations

•  e.g. cinematic content, children's advertising, online advertising in the US

Co Regulatory Organizations

• e.g. online advertising in Europe

Stuart Ingis on OBA (Online Behavioral Advertising) Notice and Choice

Digital Advertising Alliance (DAA)

• website: AboutAds.info
• self regulatory program for online behavioural advertising
• principles released in July 2009 – 50 page document > Self-Regulatory Principles for Online Behavioral Advertising
• advertising option icon > the icon indicates adherence to the Principles > consumers can click on icon to view clear disclosure statement; an easy-to-use opt-out mechanism
• icon used in ad notices; for example: Dawn and American Express Rewards Gold card
• a lot of publishers and advertisers are putting notices and icon in footers
• DAA consumer choice mechanism – www.AboutAds.info – self-populates, you should go there if you haven't
• CBBB (Council of Better Business Bureaus) and DMA (Direct Marketing Association) have complementary accountability programs

Advertising option icon

Dr. Paolo Balboni on Trust Marks

EU Trustmarks

• have been put into place to help with Self Regulation
• Action 17 EU Digital Agenda
• Art. 29 Working Party Opinion 3/2010 [pdf]
• companies started to see compliance with privacy and data protection as an asset to sell their services and products. Favourable to proving compliance of such trustmarks
• Commission is going to evaluate whether to use trustmarks
• certificates in general could be a valuable way to support accountability. Steps: privacy assessment; implementation option; getting a trustmark to make a consumer see a company is compliant
• trustmark is a label that allows consumers to recognize if they can trust a website
• Trustmark Organizations (TMOs): e.g. Trusted Shops (strong in Germany, France and UK but not yet pan-European), thuiswinkel woorborg (very local; very strong in The Netherlands; a consumer association of Holland is behind it), TRUSTe (he has been critical of this company but they have improved; they are very strong in the United States and well-positioned in Europe; looking into the European market).
• active monitoring of compliance is key
• The Commission is looking for pan-European trustmark to allow for cross-border use.

Panel discussion

Q. Your general view of Self Regulation and other model schemes

Commissioner Stoddart: Yes, there is a role for Self Regulation in every modern economy. Cannot have compliance with the law unless there is an attempt at self compliance. However, in Canada have not taken the position that Self Regulation is enough. They have passed a law covering consumer protection of data. It is written in a very general way and they try to interpret it flexibly.

Ingis: Yes

Commissioner Brill: Self Regulatory frameworks are important. Is it sufficient? There have to be some key elements for Self Regulation to be enough.There ought to be some kind of compliance monitoring and real consequences if there is not compliance. It needs to keep pace with technology. Self Regulation might be more facile and hold more promise for keeping up with technology. Set up a mechanism for consumers to interact with it; it needs to avoid technological loopholes. It needs to take into account sensitive information in a self regulatory regime.

Q from audience: De-regulation in an industry such as the airline industry; how do you get people to buy in if the underlying structure is entrepreneurial?

Ingis: There is government oversight; government puts pressure on the business industry to self regulate. Every industry is different. In advertising and marketing world; sometimes regulation is backed up with legislation, sometimes not. If you compared these areas with those with just legislation, you would probably see more compliance with Self Regulation.

Commissioner Stoddart: Back in 1995 the average consumer could understand what was going on in the advertising world; today the average consumer does not know what is going on with the technology when they click on advertising. The ability to take advantage of the trail of information is extraordinary. When Microsoft set up of 8.0 browser they wanted an opt out feature, an opt out feature that has to be refreshed. New features of the digital world; as regulatory bodies need to have an understanding.

Ingis: Doesn't jump to the conclusion that Self Regulation doesn't work. Need education and transparency. Some views are cultural, some related to demographics (e.g. age). Benefits outweigh the concerns, as long as protection is in place. Wall Street Journal stories about the Microsoft browser may have been embellished. Microsoft was going to have a feature to allow for ad blocking; did not have it as a default. Has been characterized as not as accurate as it was.

Q: Co-regulatory scheme by both government and industry to make this work?

Dr. Balboni: The European Commission – EU is recommending an accreditation scheme for third parties providing trustmarks. Say there is no compliance with privacy and data protection by the advertising industry, both parties can accept the risk (the advertisers and the consumer). Now the government is putting Self Regulation in place; he thinks this is a good idea. Better to have Self Regulation, then the industry is more likely to comply with it.

Commissioner Brill: When does Self Regulation work best, should it be part of Co Regulation? Yes. What does it require? Difficult to talk about it in the abstract. In the US, they have identified by statute certain areas that need regulation e.g. credit reports, health information, online children's information, financial information under the GLB. What about geolocation information? Facial recognition? Is self-regulatory model enough to address these sensitive areas? Data brokers who may not be traditional credit reporting agencies may fall under this regulatory area. At its best, it is an iterative process. Where are the areas of sensitive process? They put out reports identifying the issues; industry is clearly reading the reports.

Commissioner Stoddart: In the last 10 years, the emergence of the concept of trustmark used outside of North America has seen them reimported back through the Asian world. At the same time, many of the countries that use trustmarks (e.g. Mexico), see an increasing pattern to co-regulation.

Q: What is the current program around OBA (online behavioral advertising)? How is the program doing? Are consumers aware somebody is tracking them? Are companies competing to show they are protecting data?

Ingis: There is not some deadline to be hit; people are supposed to be compliant now to the IAB's (Interactive Advertising Bureau's) part of its code. Progress was strong at first behind the scenes, not public. There is a finite number of actors, expected to decrease with consolidation. They have had good progress, and a further call from the Commission to do more. They have undertaken to look to see if they can put walls around all data protection.

Q from audience: Finite number of actors but multiple levels of regulation?

Ingis: it benefits everybody if there is more uniformity

Q: How much should regulators work together? Are there discussions going on?

Commissioner Brill: Yes. They have not enacted a comprehensive FIPPS (Fairness of Information and Protection of Privacy) law but have a UDAP (Unfair and Deceptive Acts and Practices) law. Europe is undergoing a similar process. Canada is also looking at it; they have adapted concepts born in Canada. All are responding to things happening in industry. There are organizational, institutional and structural ways they are working together: e.g. OECD principles, APEC. Also GPEN (Global Privacy Enforcement Network).

Commissioner Stoddart: US leadership is very important in developing networks of data protection. There are also standards around fairness of information and protection of data. There is also European Adequacy status - abiding by those principles when exporting information from that country. Canada was the first granted, also granted to some other countries. This brings a more practical application to the table rather than formalities around data protection.

Q from audience: Recent US Supreme Court Sorrell case – prescription information from pharmacies – strong First Amendment principles in the US; other countries have equivalents and some don't; some have similar approached in a different way. How do you get a uniform system when principles are so different? How is that going to get balanced?

Commissioner Brill: the statute was an omnibus statute addressing prescription. The language that the SCOTUS majority decision focused on, it is hard for the justices to figure out what the state was intending with the statute. Decision is fairly sweeping but not the "death knell" for US regulators. She does not think the ability to regulate data brokers will be affected. The First Amendment does make the US different, but she is not sure how different it makes them.

Commissioner Stoddart: Coming out of international debate, it is showing how uniform regulation might take place. No one is thinking they are going to use somebody else's model; but there is a lot of willingness to be flexible to retain your own approach to make it compatible with the continuous flow of data.

Q from audience: the definition of personal information (PII) – Canada interprets it more broadly.

Commissioner Brill: U.S. state regulation around PII came out at a time before this was an issue.

Nayak: Almost anything could be considered PII if in the right context; take a piece of information that is not considered private and combine it with another piece of information, and it might be considered PII.

Dr. Balboni: Europe's definition of PII is very broad. In Europe there is an attitude that their model will be exported to the world; when they look at the US or other countries, they see it as poor. This is too bad. E.g. cloud computing – need data protection.

Q: Accountability – is there a role for accountability agents or third parties to certify compliance of companies and the patchwork that will result from the regulation across the countries?

Commissioner Stoddart: In both Google wifi and Staples investigations they asked for practical enforcement ideas; took a book out of the US Federal Commission book. On accountability generally, there is the idea that government regulatory agencies could delegate to third party accountability agencies if structured correctly could be interesting.

Commissioner Brill: In the Google Buzz settlement the FTC required third party audits – information was made public in a way that consumers didn't understand or expect would have been made public.

Q from Commissioner Stoddart: How do you go after those who are flying under the radar?

Ingis: This can be one of the strengths of self regulation if done right; bigger companies helping to do it in a forum in which they are comfortable. Larger companies were the first ones to step forward and they are seeing the rest of the ecosystem coming into play. Violators are coming forward and some haven't even heard of the program in industries in which they are active.

Q: Consumers are supposedly going to benefit; seeing a lot of renewed calls for access. Britian: MyData program. What is the role of Self Regulation here, can it define a framework for access?

Dr. Balboni: will be reflected in a new version of the European Data Protection protocol. Europe has some experience in this area of "privacy by design" or "privacy by default" – point at which access should be given to end users. Look at a way to build privacy by design to empower the user and give access to the data the company will have. The perception of personal data is changing in consumers.

Commissioner Brill: The access question is incredibly important; there was not enough time to cover it today. In the US they give consumers the right to access their credit reports because the consumer needs to be able to correct them so they are not denied rights if inaccurate. Regulation around the data broker industry is important. Practical obscurity: consumers do not know who is collecting data on them. Important role by the CDIA (Consumer Data Industry Association) and other organizations could play a Self Regulatory role.

Commissioner Stoddart: Access to information has been a right for Canadian citizens over the last 10 years. It is the status quo.

Public.Resource.Org, a US non-profit started by Carl Malamud, among others, has launched a complaint against the Smithsonian Institution in a rather unusual way. The complaint is in behalf of Mindy Summers, "an artist who lives in a purple house in Vermont with her husband and two cats" and who copied and offers for sale photographs of vintage seed catalogs originally published on the Smithsonian website. The Institution sent her a take-down notice, claiming she had violated its terms of use, particularly because she was making commercial use of the images. PRO's complaint is published on a special-purpose website named "What Would Luther Burbank Do?".

On its Terms of Use page, the Smithsonian acknowledges that the copyright situation for material on its site is a mixed bag, some rights belonging to the Institution, some to other individuals, and some objects being in the public domain. The Institution also claims to be "the owner of the compilation of content" on the site. And the Terms purport to forbid commercial use in any and all cases: "You may not use the Content for commercial purposes."

The "Burbank" complaint challenges this assertion on the basis that

The Smithsonian Institution is an instrumentality of the United States, chartered by the Congress, and the recipient of $745.8 million dollars in federal appropriations in FY 2009. The Smithsonian Institution receives use of some of the most valuable real estate in the country. The Smithsonian Institution is not allowed to claim copyright in ownership in items unless it falls under specific exemptions, such as a specific requirement by a donor that copyright be maintained on specific items.

The US copyright law provides that copyright protection is not available for any work of the US government.

Moreover, PRO has thrown down a gauntlet of its own by taking steps to make the seed catalogues in question directly available on the photo-sharing site Flickr, "in direct violation of the Terms of Use and Licensing Policies." (See also here, for "enhanced" versions of these images.)

Luther Burbank, as you will likely know, was an American pioneer in agricultural science who demonstrated in his work the power of creativity. The reference to him here is meant to draw attention to the aims of copyright law and, indeed, the Smithsonian, to spur and support invention and creativity.

The Section of State and Local Government Law of the American Bar Association (ABA) hosted a panel on cyberbullying at the 2011 Annual Meeting.

The panelists included James Hanks of Ahlers & Cooney, Grant Bowers, Legal Counsel for the Toronto District School Board, Dr. Jeff Gardere, a psychologist from New York with expertise in mental health, and Kathy Macdonald, from the Calgary police.

The panel discussed how changes in technology have created new ways for students to bully each other, creating new legal challenges for schools and communities. Regulating cyberbullying raises significant constitutional questions, especially in the U.S., as illustrated by the recent decision by the 7th Circuit Court of Appeals in Zamecnik v. Indian Prairie School District #204, allowing a student to wear a t-shirt stating, "Be Happy, Not Gay." The court upheld a rule prohibiting disparaging statements in Nuxoll v. Indian Prairie School Dist. # 204, but found that this particular phrase was only mildly offensive and should not be banned,

…we described “Be Happy, Not Gay” as “only tepidly negative,” saying that “derogatory” or “demeaning” seemed too strong a characterization…
As one would expect in a high school of more than 4,000 students, there had been incidents of harassment of homosexual students. But we thought it speculative that allowing the plaintiff to wear a T-shirt that said “Be Happy, Not Gay” “would have even a slight tendency to provoke such incidents, or for that matter to poison the educational atmosphere. Speculation that it might is, under the ruling precedents, and on the scanty record compiled thus far in the litigation, too thin a reed on which to hang a prohibition of the exercise of a student’s free speech.”

With such strong statements by the court upholding students' free speech, controlling student behaviour online in the U.S. can prove particularly challenging.

Legal Background in U.S.

Most States acknowledge the authority of school districts to make rules governing school business, including the authority to adopt and enforce a student discipline code. Some States provide statutes that explicitly account for due process rights. Courts also recognize the common law doctrine of in loco parentis, allowing schools to act in the best interests of the students. Consequently, courts typically restrict themselves to striking down punishments that are excessively harsh. However, policies that are not sufficiently precise can be ruled unconstitutionally void for vagueness, and attempts to regulate the content of speech can violate the First Amendment. The Supreme Court's decision in Tinker v. Des Moines Independent Community School District held that offending speech must usually create the risk of a substantial disruption to the school's mission for it to be regulated.

With cyberbullying, the technology used for the offending conduct is usually in the personal property of the student, i.e. a cell-phone. Although schools generally have the right to readily access evidence needed to establish that a violation of a student discipline code has occurred, inspection of personal property is regulated by the Fourth Amendment. Schools can address this by creating policies that condition the use of personal devices on the consent of the students to inspect the devices where there are reasonable grounds to do so. A technology expert may be required to help deal with stolen passwords, phony websites, and ascertaining anonymous individuals.

Freedom of Speech and Expression

Neither teachers or students shed their constitutional rights to freedom of speech or expression. For schools to have the right to regulate off-campus conduct, they must show that the behaviour has an adverse effect on school operations. The court in Thomas v. Board of Education, Granville Central School District indicated that the authority provided to schools to punish speech on school property was largely premised on the confinement of this power to the school itself.

The wide breadth of speech in a public forum provided in Cohen v. California does not apply in the same way to schools. The Supreme Court upheld the suspension of a student who made a lewd speech during an assembly in Bethel School District No. 403 v. Fraser, but the Third Circuit Court of Appeals rejected the use of this case in Layshock v. Hermitage School District to punish a student for a fake MySpace profile of the principal because it did not cause a substantial disruption,

Accordingly, because the School District concedes that Justin’s profile did not cause disruption in the school, we do not think that the First Amendment can tolerate the School District stretching its authority into Justin’s grandmother’s home and reaching Justin while he is sitting at her computer after school in order to punish him for the expressive conduct that he engaged in there.

We realize, of course, that it is now well established that Tinker’s “schoolhouse gate” is not constructed solely of the bricks and mortar surrounding the school yard. Nevertheless, the concept of the “school yard” is not without boundaries and the reach of school authorities is not without limits.

…

It would be an unseemly and dangerous precedent to allow the state, in the guise of school authorities, to reach into a child’s home and control his/her actions there to the same extent that it can control that child when he/she participates in school sponsored activities. Allowing the District to punish Justin for conduct he engaged in while at his grandmother’s house using his grandmother’s computer would create just such a precedent, and we therefore conclude that the district court correctly ruled that the District’s response to Justin’s expressive conduct violated the First Amendment guarantee of free expression.

However, where the vehicle for student speech has been created by the school district, the Supreme Court has recognized in Hazelwood School District v. Kuhlmeier a right to control that speech, as long as the actions are reasonably related to pedagogical concerns. The Court has also upheld a suspension in Morse v. Frederick in a school-sponsored activity held off-campus for statements related to drug use, largely based on public policy for preventing student drug involvement. In Watts v. United States, the Court noted that true threats were not protected by the First Amendment, but there is conflicting case law on how a threat is to be assessed. Speech has also been upheld recently in the recent hate speech case of Snyder v. Phelps,

Speech is powerful. It can stir people to action, movethem to tears of both joy and sorrow, and—as it did here—inflict great pain… As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate.

Unreasonable Search or Seizure

In New Jersey v. TLO the Supreme Court held that searches by school officials mush be reasonable under the circumstances using the following test:

1. Consider whether the action was justified at its inception
2. Determine whether the search as actually conducted was reasonably related to the circumstances with justified the interference

Random drug testing for athletic activities was upheld in Vernonia School District 47J v. Acton, and a mandatory extra-curricular drug testing program was upheld as constitutional in Board of Education of Pottawatomie County, Okla. v. Earls.
The Court first acknowledged the changing nature of society's expectations of proper behaviour and privacy in light of new technology in City of Ontario, Cal. v. Quon. A public employer's right to search their own computer systems have generally been upheld by Federal courts, as in U.S. v. Angevine and Leventhal v. Knapek, where although an employee expectation of privacy existed, searches were considered reasonable and only a modest intrusion.

The Florida State court held in Times Publishing Company v. City of Clearwater that private or personal e-mails fell outside the definition of public records, and could not be disclosed to a newspaper requesting it. The Ohio Supreme Court also held that e-mails were not a public record in The State Ex Rel. Wilson-Simmons v. Lake County Sheriff's Department. Although e-mails were considered public records in Tiberino v. Spokane County, they were exempt from disclosure because the content did not contain anything of public significance. In Board of County Commissioners of Araphoe County v. Baker, the Colorado Court of Appeals applied the State's record legislation and prohibited the release of e-mails as they were not public records and private communications could not be disclosed.

Applicable Federal legislation includes the Omnibus Crime Control and Safe Streets Act of 1968, the wiretap provisions in S. 2510-2525 of the Stored Wire Communications Act (the "Wiretap Act"), Electronic Communications Privacy Act of 1986, and Communications Decency Act. The consent exemptions under the Wiretap Act have been considered in Deal v. Spears, Watkins v. L.M. Berry & Co., Griggs-Ryan v. Smith, and James v. Newspaper Agency Corp.

Due Process Requirements

The Supreme Court held in Goss v. Lopez that students have a property interest in their education and should not be deprived of their rights without due process of law. Even a short suspension of 10 days or less could deprive a student of their property interest to an education, and their liberty interest to their good name and reputation. Procedural due process requires that students must be given oral or written notice of allegations in such short suspensions, the supporting facts and evidence, and an opportunity to respond tot he charges. Students do not necessarily have a right to prepare for their case, or consult with counsel or a parent.

The Court in Fraser held that student conduct codes need not be as detailed as a criminal code which imposes criminal sanctions, and found the code in that case was not void for vagueness. Similarly, in Alex v. Allen the federal district court indicated that the flexibility required to control the conduct of children allowed for student codes to use terminology broader than criminal statutes.

Cyberbullying Case Law

Cases Rejecting Regulation

The court in Mahaffey v. Aldrich considered the suspension of a student who created a website entitled "Satan's web page," which listed other students that the creator wanted to die. The court applied Tinker and found that no substantial disruption occurred and there was no communication of the statements to anyone else,

There is no evidence on the record that Plaintiff communicated the statements on the website to anyone. Plaintiff has stated that the website was created "for laughs," and that he never meant "anyone else to see it." (Pl.'s Ex. H). Although other students did see the website, there is no evidence that they did so because Plaintiff "communicated" the website to them or intended to do so. Furthermore, other than listing the names of other students on the website, there was no threat made against any of the students. In fact, the website contained the statement: "PS: NOW THAT YOU'VE READ MY WEB PAGE PLEASE DON'T GO KILLING PEOPLE AND STUFF THEN BLAMING IT ON ME. OK?" (Pl.'s Ex. F)(emphasis in original). In this Court's opinion, a reasonable person in Plaintiff's place would not foresee that the statements on the website would be interpreted as a serious expression of an intent to harm or kill anyone listed on the website. Plaintiff's listing of names under the heading "people I wish would die," did not constitute a threat to the people listed therein anymore than Plaintiff's listing of names under the heading "people that are cool," make those listed therein "cool." The website and the statements contained thereon do not constitute a threat and are, therefore, protected speech.

The court also found that due process was violated because notice of the hearing was provided one month after it had occurred, and no cross-examination of the witness was allowed.

The student in Beussink v. Woodland R-IV School District created his website on a home computer outside of school hours. It used vulgar language that was not defamatory to criticize the school and used a hyperlink to the school's website. Another student saw the site on his home computer and reported it to a teacher, and the principal accordingly disciplined the student without an investigation into whether other students had even heard of the site. The 10-day suspension resulted in the student failing 4 classes he would have otherwise passed. Only mild disruption could be demonstrated, and the principal appeared motivated more by being upset than concern of disruption,

Disliking or being upset by the content of a student's speech is not an acceptable justification for limiting student speech.

In an unreported decision, Beidler v. North Thurston School District No. 3, the student's website showed parodied an assistant principal. The student relied on Beussink and was successful in claiming his First Amendment rights had been violated. The court refused to modify the test even in light of the influence of the Internet,

Today the first amendment protects student speech to the same extent as in 1979 or 1969, when the U.S. Supreme Court decided Tinker.

In Killion v. Franklin Regional School District (2001), an e-mail list poking fun at a school's athletic director created at home and sent to students made its way to the school grounds. In addition to finding a First Amendment violation for the discipline, the court held the school policy was void for vagueness because the terminology did not allow the student to determine the nature of prohibited conduct in advance.

Despite the use of obituaries in the website considered in Emmett v. Kent School District, the court found that no threat could be demonstrated,

The defendant argues, persuasively, that school administrators are in an acutely difficult position after recent school shootings in Colorado, Oregon, and other places. Web sites can be an early indication of a student's violent inclinations, and can spread those beliefs quickly to like-minded or susceptible people. The defendant, however, has presented no evidence that the mock obituaries and voting on this web site were intended to threaten anyone, did actually threaten anyone, or manifested any violent tendencies whatsoever. This lack of evidence, combined with the above findings regarding the out-of-school nature of the speech, indicates that the plaintiff has a substantial likelihood of success on the merits of his claim.

The school district in Coy v. Board of Education of North Canton City Schools relied on Fraser to discipline a student who created a website making lewd comments about another student, created at home but accessed at school. Although the court here denied the First Amendment claim they upheld the student's impermissibly vague argument, but also held that even if a student is disciplined for accessing a site at school they must still meet the substantial disruption test in Tinker. The student policy in Flaherty v. Keystone Oaks School District was also found to be vague and overbroad, because the student handbook used for the discipline lacked geographic limitation, was not linked to substantial disruption, and the terminology used was too vague to allow students to know what behaviour would violate them.

Layshock v. Hermitage School District and J.S. v. Blue Mountain School District were initially decided on the same day in the Third Circuit, but came to opposite conclusions, resulting in both being vacated and a new hearing en blanc, both released on June 13, 2011. In Blue Mountain, the students created a fake MySpace profile of the principal, calling him bisexual and a pedophile, using his school website photo, and making derogatory statements about his family. Several students viewed the page off-site and then told the principal. The court found that Fraser can only be used to regulate in-school conduct, but they also held that the First Amendment was violated,

Turning to our record, J.S. created the profile as a joke, and she took steps to make it “private” so that access was limited to her and her friends. Although the profile contained McGonigle’s picture from the school’s website, the profile did not identify him by name, school, or location. Moreover, the profile, though indisputably vulgar, was so juvenile and nonsensical that no reasonable person could take its content seriously, and the record clearly demonstrates that no one did…

In comparing our record to the record in Tinker, this Court cannot apply Tinker’s holding to justify the School District’s actions in this case. As the Supreme Court has admonished, an “undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression"…

Finally, any suggestion that, absent McGonigle’s actions, a substantial disruption would have occurred, is directly undermined by the record. If anything, McGonigle’s response to the profile exacerbated rather than contained the disruption in the school. The facts simply do not support the conclusion that the School District could have reasonably forecasted a substantial disruption of or material interference with the school as a result of J.S.’s profile. Under Tinker, therefore, the School District violated J.S.’s First Amendment free speech rights when it suspended her for creating the profile.

What makes this interesting is when this decision is contrasted with the initial decision that was vacated, especially in its application of Tinker,

Undoubtedly, students have made fun of or made distasteful jokes about school officials, free from the consequences of school punishment, either out-of-earshot or outside the school context since the advent of our modern educational system. However, due to the technological advances of the Internet, J.S. and K.L. created a profile that could be, and in fact was, viewed by at least twenty-two members of the Middle School community within a matter of days…

We thus cannot overlook the context of the lewd and vulgar language contained in the profile, especially in light of the inherent potential of the Internet to allow rapid dissemination of information. Accordingly, J.S.'s argument for a strict application of Tinker, limited to the physical boundaries of school campuses, is unavailing… Instead, we hold that off-campus speech that causes or reasonably threatens to cause a substantial disruption of or material interference with a school need not satisfy any geographical technicality in order to be regulated pursuant to Tinker…

We hold that Tinker applies to student speech, whether on- or off-campus, that causes or threatens to cause a substantial disruption of or material interference with school or invades the rights of other members of the school community. Therefore, because J.S.'s Internet profile featuring her principal alluded to his interest or engagement in sexually inappropriate behavior and illegal conduct, we conclude that it threatened to substantially disrupt the Middle School regardless of whether J.S.'s role in creating the profile was criminal or tortious. While we maintain great respect for students' First Amendment free speech rights, we are also cognizant that school officials are tasked with making difficult decisions and bear significant responsibility in educating our children. We conclude that the Constitution allows school officials the ability to regulate student speech where, as here, it reaches beyond mere criticism to significantly undermine a school official's authority in challenging his fitness to hold his position by means of baseless, lewd, vulgar, and offensive language.

A high school student in J.C. ex rel. R.C. v. Beverly Hills Unified School District took a video of some friends at a local restaurant, talking about one of their classmates in a negative way, and uploaded it to YouTube once she got home. The student then sent the video to a number of students, including the target of the video. The student had a prior history of secretly videoing her teachers and had been suspended for it before. In reviewing the application of Tinker, the court indicated that the majority of courts will apply it where the speech is brought to the school or the authorities, meaning any speech – regardless of origin – will be considered for substantial disruption. Some courts will also look for a nexus between the speech and the school, and any efforts by the student to keep the materials off campus. Consequently, the court rejected the geographic origin test for applying Tinker. The court ruled that a minimal number of classes were missed as a result of the videos, and there was no classroom disruption,

For the Tinker test to have any reasonable limits, the word “substantial” must equate to something more than the ordinary personality conflicts among middle school students that may leave one student feeling hurt or insecure. Likewise, the Court finds that the mere fact that a handful of students are pulled out of class for a few hours at most, without more, cannot be sufficient. Tinker establishes that a material and substantial disruption is one that affects “the work of the school” or “school activities” in general… Thus, while the precise scope of the substantial disruption test is still being sketched by lower courts, where discipline is based on actual disruption (as opposed to a fear of pending disruption), the School’s decision must be anchored in something greater than one individual student’s difficult day (or hour) on campus.

…the fear that students would “gossip” or “pass notes” in class simply does rise to the level of a substantial disruption. As noted above, several cases, including Tinker, have found that a general “buzz” about a student’s speech fails to meet the substantial disruption test… Moreover, the speech must create something more than a “mild distraction or curiosity” in order to past muster under Tinker.

However, it should be kept in mind that this decision relied heavily on earlier findings in Layshock and Blue Mountain.

Cases Upholding Regulation

Where a teacher has been able to prove personal and medical problems as a result of cyberbullying, the substantial interference test may be met. In J.S. v. Bethlehem Area School District the website created by the student at home targeted an algebra teacher and the principal. Part of the content included pictures of the teacher with blood dripping from the head, her face morphing into Adolph Hitler, and offering money for a hitman to kill the teacher. The teacher testified that she suffered physical and emotional effects from the website. The court upheld the discipline, and Justice Ralph J. Cappy stated for the majority,

Unfortunately, the United States Supreme Court has not revisited this area [of First Amendment rights of public school students] for fifteen years. Thus, the breadth and contour of these cases and their application to differing circumstances continues to evolve. Moreover, the advent of the Internet has complicated analysis of restrictions on speech. Indeed, Tinker's simple armband, worn silently and brought into a Des Moines, Iowa classroom, has been replaced by J.S.'s complex multi-media web site, accessible to fellow students, teachers, and the world.

The reasonable foreseeability of substantial disruption was also found in Wisniewski v. Board of Education of Weedsport Central School District, where the student created an instant messenger icon on his home coputer with a picture of a gun shooting a person in the head, and a caption indicating a threat directed towards his English teacher. Other students received the icon through instant messenger. Applying Tinker, the court found that the First Amendment had not been violated,

The fact that Aaron's creation and transmission of the IM icon occurred away from school property does not necessarily insulate him from school discipline. We have recognized that off-campus conduct can create a foreseeable risk of substantial disruption within a school…

The potentially threatening content of the icon and the extensive distribution of it, which encompassed 15 recipients, including some of Aaron's classmates, during a three-week circulation period, made this risk at least foreseeable to a reasonable person, if not inevitable. And there can be no doubt that the icon, once made known to the teacher and other school officials, would foreseeably create a risk of substantial disruption within the school environment.

Whether these aspects of reasonable foreseeability are considered issues of law or issues of fact as to which, on this record, no reasonable jury could disagree, foreseeability of both communication to school authorities, including the teacher, and the risk of substantial disruption is not only reasonable, but clear. These consequences permit school discipline, whether or not Aaron intended his IM icon to be communicated to school authorities or, if communicated, to cause a substantial disruption.

The student in Doninger v. Niehoff posted messages on her public blog criticizing decisions of school administrators involved in a music festival,

Although Doninger argues that Tinker is not satisfied here because the burgeoning controversy at LMHS may have stemmed not from Avery's posting, but rather from the mass email of April 24, this argument is misguided insofar as it implies that Tinker requires a showing of actual disruption to justify a restraint on student speech. As the Sixth Circuit recently elaborated, "[s]chool officials have an affirmative duty to not only ameliorate the harmful effects of disruptions, but to prevent them from happening in the first place." …Here, given the circumstances surrounding the Jamfest dispute, Avery's conduct posed a substantial risk that LMHS administrators and teachers would be further diverted from their core educational responsibilities by the need to dissipate misguided anger or confusion over Jamfest's purported cancellation.

The court applied Tinker as interpreted in Wisniewski to identify 3 factors that suggested the postings foreseeably created a risk of substantial disturbance:

1. The choice of words in the blog were not conducive to cooperative conflict resolution, as evidenced by participation by other students by responding on the site with similarly vulgar and incendiary language
2. The post used misleading or false information to solicit more calls and emails
3.  This misleading information was disseminated amidst rumors that had already begun to disrupt school activities. Students had already been called away from class to manage the growing dispute.

The discipline applied in this case was to prevent the student from running for a senior class officer position, which was not a constitutionally protected right.

Recommendations

Hanks provided a number of suggestions for school districts to prevent cyberbullying:

•  draft anti-bullying policy and complaint procedures by keeping in mind constitutional rights (1st, 4th 14th Amendments)
• include appropriate sanctions in an comprehensive electronic device policy for offending communications, irrespective of location
• provide training to students
• a school-based peer mediation program
• review recommendations in Chapter VII of "Threat Assessment in Schools: A guide to Managing Threatening Situations and to Creating Safe School Climates"

Part 2 of this panel, with Canadian content and suggestions from the other panelists, will be provided shortly.

The British newspaper The Guardian has compiled data on who is being arrested for the recent riots in the United Kingdom.

It makes for a fascinating story:

In an indication of the tough justice being meted out to people accused of offences related to this week's riots, a Guardian analysis of more than 120 cases before magistrates courts so far has found the majority of defendants being remanded in custody – even when they have pleaded guilty to relatively minor offences.

As hundreds of cases fly through specially-convened night sittings of magistrates courts, the Guardian is embarking on a project to catalogue who is going to court and what is happening to them.

People facing court charged with riot-related offences are overwhelmingly young, male and unemployed. Those who are found guilty are receiving prison sentences – or being passed onto higher courts for sentencing. Out of the 1.7m cases heard in magistrates courts last year, only 3.5% were remanded to jail. These figures from this week show a rate of nearly 60%.

The accused have been charged mainly with burglary or violent disorder, we have not yet identified a single charge of riot – which is also an offence.

We wanted to know the answers to some of the key questions: how old are they? Are they in work? Where do they come from?

The data is being continuously updated as part of the newspaper's coverage and analysis of events.

Related stories in The Guardian:

• UK riots: girl, 11, and former grammar school student among those in court
• Fears of rough justice as courts rush to process riot arrests

Those of us who need to know such things know that the SCC granted leave to appeal in Clements v Clements 2011 CanLII 36004 (from 2010 BCCA 581) where the issue will be the meaning of the Canadian material-contribution doctrine (and maybe some other things about proof of causation in Canadian tort law should the Court deign to go there.)

In the meantime, a judge of the New South Wales, Australia, Court of Appeal has, conveniently, written a primer on the subject: Evans v Queanbeyan City Council [2011] NSWCA 230.

The ABA Standing Committee on Law and National Security hosted a panel on Comparative Approaches to National Security moderated by Professor Harvey Rishikof, with Brigadier-General Blaise Cathcart from JAG, and Eneken Tikk of NATO Cooperative Cyber Defence Centre of Excellence in Tallinn, Estonia. The panel looked at how different states have tried to resolve the tension of security and liberty in a variety of national security contexts, a topic recently covered by The Star.

Cathcart spoke on the virtue of the whole government approach of obtaining information, and Tikk recounted the challenge of the 2007 cyber attacks in Estonia.

The highlight of the panel for me was a surprise contribution by the Chair of Bar Association of Norway.
The crucial question for her was how much liberty are we willing to give up, whether cyberspace or in every day life, to combat terrorism.

The U.S. response to 9/11 was a military one. Part of the Bush rhetoric was that attacks were to prevent American way of life, but this did not translate into the preservation of liberties. Most analysts today concede that 9/11 was motivated by military and political intervention in the Middle East. The American response was to increase this intervention further, and there has not been any real resolution despite at least $1.283 trillion and countless lives.

In Norway, Anders Breivik actually was fighting against a way of life, one based on multiculturalism and inclusion. Norway’s Prime Minister Jens Stoltenberg responded to the attack with "more democracy, more openness and more humanity. But Norway has its own unique challenges. The death penalty is perceived as completely barbaric, and is outlawed. There is a maximum sentence of 21 years in prison there, for any offence, because the focus of their justice system is on rehabilitation.

Should people like Breivik be given their freedom after only a couple decades? Or is the appropriate response a series of extra-judicial assassinations? When we compare an amorphous and ill-defined "War on Terror" response to the current situation in Norway, where Breivik would legally be released within 21 years of imprisonment, we realize there is a huge spectrum of responses and an enormous distance in values, even between Western democracies.

The US grants citizenship to anyone born within its jurisdiction, (as do Canada, Mexico and most South American countries). Recently, however, there's been a growing debate about whether this practice is supported by the constitution and whether in any event it should be changed. A panel of immigration and constitutional law experts explored these issues this morning at the ABA meeting in Toronto.

In essence the concern on the part of those who would change the practice — and the law, if necessary — has to do with granting automatic citizenship to the children of undocumented immigrants, which, I gather, is felt to induce or reward illegal immigration, itself the felt problem. This concern is felt so strongly in some states that bills have been proposed that would attempt to exert state control over aspects of citizenship. The bar to this — and the fount of the current practice and the debate about it — is the 14th Amendment to the US Constitution, passed in 1868 after the Civil War and intended specifically to ensure that freed slaves would be incorporated into the nation and to overturn the Scott v. Sandford (aka Dred Scott) decision. Section 1 reads as follows:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The phrase "subject to the jurisdiction thereof" has an element of ambiguity to it, given the various ways in which one might understand the notions of jurisdiction and subjection. And the argument of those who would oppose citizenship for the children of undocumented immigrants is that, here, "subject to the jurisdiction" should be understood to mean something more than mere presence on the soil at birth (jus soli). This, their opponents and supporters of the current practice point out, would visit a hardship upon children for what their parents or ancestors were and did; and, moreover, it would create a bureaucratic nightmare if the bright line rule of jus soli was abandoned.

Listening to this discussion in Canada, I couldn't help seeing reflections of our own situation. Here our citizenship rules are a matter of federal statute, not the constitution, and so are at once less exalted and more easily changed. We, too, have units in the federation that are concerned about immigration and would like to control it; but here an arrangement has been struck between the federal government and the government of Quebec. And we, too, engage in legal debates about the meaning of aspects of our constitution and our laws; but rarely if ever do we see the line drawn in the way it is in the US between "originalists" and others. It's hard to imagine who would be admitted to the group of framers for our Charter of Rights and Freedoms, for example, even if we were tempted to reconstruct their mental processes. (Can you imagine consulting the ghost of Pierre Trudeau, for example?)

A short while ago the US House Judiciary Committee amended House bill H.R.1981 "Protecting Children From Internet Pornographers Act of 2011" so as to require ISPs in the United States to retain for 18 months a broad range of data about customers and their online activity. (It would seem that the version currently available on LOC's Thomas does not yet reflect the changes.) To quote from the brief story by Conor Friedersdorf in The Atlantic:

…the firm that sells you Internet access would be required to track all of your Internet activity and save it for 18 months, along with your name, the address where you live, your bank account numbers, your credit card numbers, and IP addresses you've been assigned.
. . . .
Even more troubling is what the government would need to do in order to access this trove of private information: ask for it.
[emphasis in the original]

A similar bill has been introduced into the US Senate.

On July 15, 2011, a United States federal appeals court rejected in part a constitutional challenge filed by the American public interest research center, the Electronic Privacy Information Center (EPIC), against the US Department of Homeland Security (DHS). EPIC challenged the Transportation Security Administration's (TSA) use of full-body scanners instead of magnetometers (security gates and wands) at US airports since the full-body scans force travellers to give up significant privacy. (The case was previously reported on Slaw here).

Despite the rejection, the court found that the TSA did violate the Administrative Procedure Act, which requires federal agencies to provide notice and opportunity for comment when implementing a rule that affects the rights of the public. The TSA should have followed routine procedures giving the public an opportunity to file comments, according to the case report.

Writing for the court, judge Donald H. Ginsburg noted the TSA had "no justification for having failed to conduct a notice-and-comment rulemaking." This failure was particularly important because, "few if any regulatory procedures impose directly and significantly upon so many members of the public."

As to the statutory and constitutional claims, in the court’s opinion, "Despite the precautions taken by the TSA, it is clear that producing an image of the unclothed passenger … intrudes upon his or her personal privacy in a way that a magnetometer does not."

But Ginsburg concluded that the close-up searches are reasonable and justified because lives are at stake and because the scanners—or the optional pat-down—offer the best way to prevent a passenger from carrying non-metallic explosives onto an airplane.

While Ginsburg noted "That balance [between privacy and security] clearly favors the Government", in the court’s opinion, the TSA has taken steps to protect passenger privacy, and passengers can opt out of the full-body scan and receive a pat-down.

In other words, in this case, the end (national security) justifies the means (privacy-intrusive scans). It’s reasonable to assume, however, that this isn’t the final challenge to the use of the full-body scanners that EPIC (and perhaps others) will make on behalf of American air travellers. And of course there are the isolated cases of abuse of the scanners by TSA staff.

There is a positive side to this decision for privacy rights activists; the court clearly stated that the TSA failed in its efforts to notify the public and allow for consultation on the use of the full-body scanners. This might be something on which EPIC can build a future legal challenge.

On the other hand, air travel remains as popular as ever. And I suppose if I were pulled out of the security line for an enhanced inspection, I would choose a “private” full-body scan rather than a pat-down. Despite my misgivings, I’d still rather have a stranger look at a crude image of my body than have that stranger touch my body.

Since it is generally accepted that the full-body scans invade travellers’ privacy (the federal appeal court admitted as much), I think the real question is whether the scanners are actually having the effect that the US Government and others believe they are. But that question is much more difficult—and maybe impossible—to answer.

on account of prosecutorial misconduct at trial. The prosecuting lawyers put "evidence" in front the jury that the judge had ruled inadmissible. When caught out, they suggested the jury be told to disregard that evidence. The trial judge was not impressed. (http://tsn.ca/mlb/story/?id=371713)

There is to be a Sept 2 hearing to decide if there will be a new trial.

Canadian judges are somtimes equally unforgiving where prosecutorial misconduct is involved which results in the jury hearing inadmissible evidence - see R v. Kusk, 1999 ABCA 49 - even where Charter issues are not mentioned.

This article by Jennifer Ip, Senior Claims Counsel at LAWPRO, follows up on Monday's post on E&O coverage issues when dealing with foreign law, and appeared in the same December 2010 issue of LAWPRO Magazine.

When you shop for a contractor for a home renovation, you are often reminded about the need to ensure your contractor has third party liability insurance and workers’ compensation insurance – just in case.

Do you ask that same question when you shop for a lawyer outside of Ontario (or whatever is your home jurisdiction)? Do you remember to ask if the foreign lawyer carries professional liability insurance? And do you know what his/her coverage is? Imagine this. A 40-year-old client’s husband dies in a plane crash in the United States, the result of alleged negligence by air traffic controllers who fail to identify a storm and instruct the pilot to fly into an extreme thunderstorm. All on board are killed. The client is left a widow with two young children.

Because the widow resides in Ontario, she comes to you – an Ontario lawyer – for help. You find out that liability is not an issue as another individual in the United States successfully filed a claim through the Federal Aviation Administration (FAA) for negligence against the air traffic controllers. Clearly the case needs to be commenced in Michigan; but because you are not licensed to practise in Michigan, you cannot act for your client as it would be a breach of the Rules of Professional Conduct. As well you would not have E&O coverage under your LAWPRO policy, pursuant to the territoriality exclusion.

Recognizing the importance of proportionality and professionalism by taking into consideration the complexity of the matter and significant damages claim (about $7 million), this case would justify that you assist the client as legal advisor. Your client instructs you to find the best possible Michigan lawyer to carry out the litigation on her behalf; you are to assist her in liaising with that lawyer. A thorough search leads you to a lawyer who will take the case on a contingency arrangement, with you and the lawyer taking a share of the proceeds of any settlement or judgment.

Initially things move smoothly – until the day the lawyer informs you the limitation period was missed to file a notice to the FAA regarding the claim against it. Your client’s lawsuit is now one in negligence against the lawyer in Michigan for missing the limitation period – but discover his errors and omission insurance only provides coverage with diminishing insurance limits of $250,000 – nowhere close to covering your client’s $7 million claim.

A claim for negligent referral
While the concept of negligent referral has received minimal consideration in Canada, the topic has been widely discussed in the United States and recognized as an issue by the courts in the United States. Generally, the U.S. courts have been reluctant to impose liability on a referring counsel for the negligence of a recipient lawyer if the referring counsel has taken minimal care in his/her selection. There are policy reasons for this. We live in a world of legal complexity, and it is ethically responsible (and a lawyers’ obligation under our Rules of Professional Conduct) for a lawyer to seek out specialists and refer clients to
the appropriate counsel, particularly in a foreign jurisdiction.

However, the factors examined in the discussion of whether a referring lawyer should be found responsible for the negligence of the recipient lawyer include the following:

• the due diligence of the referring lawyer in selecting the recipient lawyer including investigating the background of the receiving lawyer;
• the fee arrangement, if any, in place for the referring lawyer;
• whether the referring lawyer maintained a joint responsibility with the recipient lawyer such that the referring lawyer was in a “general counsel” or supervisory role;
• whether an indemnity agreement was in place; and
• whether there were any conflicts of interest arising because of some relationship between the referring lawyer with the recipient lawyer.

While the courts in the United States generally swing in favor of the referring lawyer, referring lawyers are not immune to the claims made against them for negligent referral and at least one court, in Florida, has imposed liability on a referring lawyer.

One factor that can tip the scales against a referring lawyer is whether the innocent lay victim will be compensated for the damages to which he or she is entitled. In other words, did the recipient lawyer have professional liability insurance to cover the damages sustained by the client?

This consideration is especially important to practising lawyers in jurisdictions such as Ontario that have a mandatory error and omission insurance program with minimum limits. Many countries require practising lawyers to carry E&O insurance, but the limits vary from one jurisdiction to the next. In the United States, only Oregon has a mandatory errors and omissions program. Some jurisdictions in the United States may have a mandatory requirement to be insured if lawyers work in a large corporation. It’s therefore important for Ontario lawyers to ask if lawyers in foreign jurisdictions have professional liability insurance with sufficient coverage for their client’s case.

A referring lawyer may not be able to avoid a claim simply because he does have insurance coverage and the recipient lawyer does not or has only limited insurance coverage. If you’re in a situation where you are selecting counsel in a foreign jurisdiction – do your due diligence: Evaluate the foreign lawyer’s credentials
diligently. And make sure the recipient lawyer carries up-to-date errors and omissions insurance with limits sufficient for the client’s case.

Seems that every couple of years or so I feel compelled to refer to the witticism about the unpleasant nature of making laws and sausages. This time, however, the link between the making of food and laws is rather more serious; this time the laws would compel us to avert our eyes — from farming, at least.

As factory farming has grown over the years, competition has increased and the pressure on farmers to keep the price of food low has remained steady. The result in many, or most, cases has been a deterioration in the conditions in which food animals are raised. Various exposés and polemics, such as the powerful film Food, Inc. and the very popular books by Michael Pollan, have contributed to a growing movement concerned to investigate the treatment of animals on farms and to advocate for its betterment. In response, some U.S. farm lobbies, very powerful in farming states, have caused bills to be placed before state legislatures that would criminalize certain acts designed to publicize the treatment of animals.

Known as "ag-gag" bills, these have been introduced in the last year in Minnesota, Florida, New York, and Iowa, that I'm aware of. All have failed in one way or another, typically falling when the legislature goes into recess.

The last of the current crop to fall was Iowa's, House File 589. What has particularly worried opponents is that this bill, like the others, would punish the taking of pictures or the recording of sounds of animals on farms. (That this would almost certainly be in violation of the U.S. constitution seems not to have bothered the bills' proponents.) The relevant portion of the Iowa bill is set out below:

Mark Bittman has written regularly in the New York Times to criticize these bills. His two most recent pieces are: Who Protects the Animals and Banned From the Barn

Yesterday the United States Supreme Court delivered a 7-2 opinion about violent video games: Brown, Governor Of California, et al. v. Entertainment Merchants Association et al. [PDF]. Justice Scalia wrote the majority decision, in which it was decided that a California law prohibiting the sale or rental of "violent video games" to minors is invalid as violating the first amendment protecting freedom of speech.

As might be expected, Scalia reviewed those restrictions on speech that have been supported by the courts, finding them in American traditions as spelled out in United States v. Stevens [PDF], a case concerning depiction of animal cruelty decided by the Supreme Court a year ago:

Last Term, in Stevens, we held that new categories of unprotected speech may not be added to the list by a legislature that concludes certain speech is too harmful to be tolerated.

… We held that statute to be an impermissible content-based restriction on speech. There was no American tradition of forbidding the depiction of animal cruelty—though States have long had laws against committing it.

Of the California law, Scalia said:

California’s argument would fare better if there were a longstanding tradition in this country of specially restricting children’s access to depictions of violence, but there is none.

And he cited numerous books in which violent acts occur, for example, Grimm's Fairy Tales, Homer's Odyssey, Golding's Lord of the Flies. As well, he rejected the expert evidence produced at trial by California because it showed only a correlation and not a causal relationshihp between depiction of violence and subsequent violent behaviour by children.

I'm not suffiently armed with knowledge to take on a legal critique of this judgment here, though I imagine any critique would want to examine, among others, such things as:

• the fact that this is to a significant degree corporate speech we're protecting; though it's not advertising, the suit is brought not by a disappointed creator of a fiction but by an industry;

• the conflating the relatively new medium of video games with other forms of expression (there's a ready place for novelty) while at the same time binding the court's hands with a traditional list of exceptions (there's no place for novelty);

• the difficulty any social research will having in pointing to a direct causal link;

• the court's view of parenting and the rights of parents in relation to the protection of children ("The Puritan tradition in New England laid the foundation of American parental authority and duty. See MacDonald 6 ('The Puritans are virtually the inventors of the family as we know it today.')");

• and, speaking of Puritans, the radically different treatment at law of sex and violence.

The dissents make important reading, of course. Here is Justice Breyer eloquently (to my mind) enlarging on the last point above:

But what sense does it make to forbid selling to a 13-year-old boy a magazine with an image of a nude woman, while protecting a sale to that 13­ year-old of an interactive video game in which he actively, but virtually, binds and gags the woman, then tortures and kills her? What kind of First Amendment would permit the government to protect children by restricting sales of that extremely violent video game only when the woman — bound, gagged, tortured, and killed — is also topless?

What concerns me, and has for a while now, is not so much whether this is licit or illicit conduct — that is, what the law has to say about violent video games — but the prevalence of violence in video games and their immense popularity as social facts. And, I have to add, popularity with boys and young men; I suspect (but do not know) that girls and young women do not find these violent games as engaging. Aside from the issue of causing harm to children (about which I'm uncertain: I speak as someone who played "cowboys and Indians" as a child and who treasured my collection of cap guns), I would ask simply what it says about us as a society that these passtimes are the favourite passtimes of male youth.

It might be a sensible displacement of our "shadow sides" onto a harmless object — a waking dream, if you like: no harm, no foul. Or it might mean something more unpleasant.

On June 14th, the non-profit Business & Human Rights Resource Centre launched an online portal on Business & Children.

The Portal covers issues such as child labour, dangerous products, education, forced labour, pollution damaging health, pregnancy discrimination, sexual exploitation and trafficking. The content comes from many sources including NGOs, international organizations such as UNICEF and the ILO, governments, journalists, academics, and companies themselves. It features responses by companies to allegations of misconduct as well as positive initiatives they, NGOs and other organizations have taken to protect the rights of children.

The Business & Human Rights Resource Centre tracks the human rights impacts (positive & negative) of 5000 companies in over 180 countries. Its work is supported by some 20 academic partners in Africa, Asia, Europe and the Americas.

What do Estonia and Denmark have in common that sets them apart from the rest of Europe?

They're the only two of the 27 countries in the European Union that have complied with a directive on privacy that came into force on May 26. [The Register has the story.] The directive — a 2009 amendment to the broader directive on privacy — concerns cookies, those tiny bits of script that web servers can lodge on your computer in order to record your preferences, report back on your choices, or perform other relatively simple acts of communication between your machine and the mother ship that set the cookie.

The cookie law is paragraph 66 of Directive 2009/136/EC [PDF] and essentially mandates that computer users:

…be provided with clear and comprehensive infor­mation when engaging in any activity which could result in such storage or gaining of access. The methods of pro­viding information and offering the right to refuse should be as user-friendly as possible…
[See full content in pop-up]

The UK has formally announced that it is giving its citizens and businesses a year's grace before it passes a local law implementing the directive. Other countries have simply failed to take any steps towards implementation.

The concern seems to be the difficulty compliance would cause businesses that now set cookies and the desire not to harm commerce. It has been suggested that compliance may be most easily possible by getting the modification of browsers, taking the burden of the directive off business and putting on the technology. As well, it would seem that uses may be less likely to reject cookies if the warning and option are browser-based, rather than a part of a business's website.

Does such a "cookie warning" law seem like a good idea for Canada? Would it be sufficient if your browser asked for permission to set a cookie, or should the request come from the business itself? If a browser warning is okay, should you be able to turn off the warnings?

It isn’t uncommon to read in local, national and international newspapers stories of domestic workers being ill-treated, underpaid and overworked. While Canadian employment standards offer some protection to domestic workers, this certainly isn’t the case across the globe.

With the International Labour Organization’s (ILO) International Labour Conference currently taking place in Geneva from June 1 to June 17, with the agenda including an item entitled “Decent work for domestic workers”, there are hopes that a Convention supplemented by a Recommendation will be adopted to afford what is seen as urgently-needed protection to domestic workers (see the ILO website for more information).

At last year's Conference, a resolution was passed to place this item for discussion on this year's agenda. Since then, member states, along with employers’ and workers’ organizations, have been invited to submit replies to various proposed provisions to this Convention and Recommendation. This Convention, if adopted, will address such issues as rest periods, remuneration, health and safety and other basic conditions of work for domestic workers.

If adopted by the Conference, member states will have the option of ratifying this Convention after submitting it to their national competent authority. Once ratified, a country must ensure that its laws are in conformity with the Convention and will be subject to the ILO’s supervisory system. However, a member state may choose not to ratify it. 

While this Convention and Recommendation is certainly a step in the right direction, such issues often have deep roots in the cultural and social norms of a country and change isn't always necessarily quick in coming. What do you think, will an ILO Convention make a difference?

From Dr. M Veerappa Moily, the Centre's Minister of Law & Justice comes a Press Release:

The scope of this program is creation and management of the ‘National Legal e-library’ for 933 schools in India, Bar Associations, Government Legal departments etc. and meet the needs of academic librarians, students, faculty and young practitioners. It aims to provide a practitioners view and a comprehensive understanding of core subject areas of law.

Various technology tools that make the concept of E-Library indispensable are Easy Access to provide a campus wide access using IP Authentication, Results clustering to familiarize new users with different classes of content by providing an instant, multi faceted analysis of distribution of hits in each result set, flexible display option with inclusion of full featured tools that allow for printing, emailing and saving, interoperability that works with systems one use to manage electronic holdings through e-journals systems, Article linking Federated search, Meta search & Citation export to Reference Works, smart indexing technology to help users to reach the information they need by applying controlled vocabulary terms for several different taxonomies and powerful source selection to identify sources by type, language, topic, geography and other facets.

Comments on the announcement can be found here and here

The Minister has had a busy week, since he also announced a very broad privacy and data protection law: “every individual shall have a right to his privacy — confidentiality of communication made to, or, by him — including his personal correspondence, telephone conversations, telegraph messages, postal, electronic mail and other modes of communication; confidentiality of his private or his family life; protection of his honour and good name; protection from search, detention or exposure of lawful communication between and among individuals; privacy from surveillance; confidentiality of his banking and financial transactions, medical and legal information and protection of data relating to individual.”

We'll check in after the big day to see how much of this is vapourware or PR puff.

In a recent survey of 500 information technology and data security workers, 40 percent said they could easily use their knowledge of encryption keys, shared passwords, weak controls and loopholes in data security programs to make off with information, or hold their organization’s data hostage. And 31 percent said that, even if they no longer worked for the company, with their knowledge of the systems they could access encryption keys and authorization codes and hack in remotely to snoop, secretly alter files or shut down the data system.

Digital security firm Venafi discovered that firms that mismanage their encryption keys could fall victim to disgruntled former employees hiding or withholding encryption keys to the detriment of the firms. This threat has been attributed to lack of internal controls, poor management and failing to understand how weak management of encryption keys, data and security can hurt their organizations.

The survey shows that 82 percent of companies now use digital certificates and encryption keys to protect digital assets and to secure sensitive system communications. However, 43 percent admit to being locked out from their own information because people have left the organization or keys were lost.

The survey reveals that organizations need to come to terms with how crucial encryption keys are to safeguarding the entire enterprise, but even more critical it is to monitor and manage who has access to them!

A good example stems from a recent US case.

In April 2010, Terry Childs, a former IT employee with the City of San Francisco was sentenced to four years in prison for blocking access to the city’s network (which he designed) and refusing to turn over the passwords. It took Childs 12 days in prison to provide the passwords to the mayor, whom he claimed to be the only person with the right to receive the passwords according to company policy. During Childs’s silence, city employees were unable to access police records, payroll data and other information.

On May 17, 2011, Childs was back in the news when it was reported that he would also be fined a significant amount in restitution to the city: $1,485,791! City officials claimed that was how much it cost them to try and break into their own network during the standoff and test for vulnerabilities after the incident.

According to court filings, this incident was a culmination of a long-simmering dispute between Childs and his managers, who had been seeking administrative passwords to the network. Childs had refused to provide the passwords, supposedly because the people asking were not authorized to receive them, and he feared that they would be shared with management or outside contractors. He argued that “his actions, depicted as criminal by prosecutors, were in line with standard network security practices.”

According to the city, Childs was disgruntled because he found out his job was in jeopardy and was trying to make himself indispensable to the city’s IT department.

Commentators are arguing that this additional punishment is way too harsh and the amount way too high since no hardware was damaged by Childs and the vulnerability testing should have been done anyway. They also add that the city needs to be held accountable for allowing a system in which only one person knows the passwords in the first place, after all, what would have happened if Childs had been hit by a bus?

Others think there is more to the story.

Regardless, this case and the Venafi survey are strong warnings to businesses that they cannot necessarily entrust their sensitive data to the whims of a few highly skilled IT employees—or former employees. The Globe article offers some suggestions on how to address the problem, but it really comes down to clear communication with security contractors and IT staff, and clear and binding internal policies with respect to security and employment. Staff must understand their obligations to their employer and the organization’s data both during their employment and after, and these obligations should exist in writing.

It’s also probably a good idea to make sure that a single person doesn’t control access to your entire network.