Information Roundup – 30 June 2008

Happy Canada Day!  We had a great weekend on Wolfe Island.  There’s no better place than Kingston in the summer, and Canada Day across the harbour with family and friends is also an ideal.  

Here are some things I’ve read lately that you may find interesting:

  • Drake Bennett, “Stopping Google.”  This is a very good article that identifies the range of policy issues raised by Google’s amazing success and power.  Hat tip to Professor Frank Pasquale (who’s quoted in the article) and the Concurring Opinions blog.
  • Orin Kerr, “Updating the Foreign Intelligence Surveillance Act.”  The most recent University of Chicago Law Review has published 13 essays from a surveillance symposium it recently ran.  The essays are very technical and policy-oriented and not about general information and privacy concepts (which was what I was hoping for).  They are interesting though, and as an uninformed outsider attempting to understand the debate about domestic surveillance, this essay provided a nice and fairly accessible overview.  This is no slight to Professor Kerr, who also makes a solid argument on FISA reform.
  • Ryder Gilliand, “Fair Comment and Freedom of Expression in Simpson v. Mair.”  This is Mr. Gilliand’s comment on Friday’s Supreme Court of Canada decision on the fair comment defence.  

In Simpson, the majority not only laid down the law on fair comment, it gave an odd teaser on “the public interest defence of responsible journalism,” presently queued up to be heard by the Court next January in Cusson v. Quon. Though Binnie J. specifically marked this part of his majority decision as obiter, he also showed the majority’s openess to recognizing a special defence for those who publish news and suggested the real debate should be about its nature and scope:  

While the legal position in both Australia and New Zealand was influenced by statutory provisions that have no direct counterpart in Canada, the Canadian law of qualified privilege will necessarily evolve in ways that are consistent with Charter values.  At issue will be both the scope of the qualified privilege (Reynolds is broader) and whether the burden of proof of responsible journalism should lie on the defendant (Reynolds) or irresponsible journalism on the plaintiff  (Lange v. Atkinson).