Equustek – Score one for rule of law and internet harm reduction

We all know that, on Wednesday, a 7-2 majority of the Supreme Court of Canada affirmed an order that required Google to de-index the websites of a company who was using the internet to sell the intellectual property of another company – an order against a non-party with global effect. The case – Google v Equustek –  is about rule of law in internet days and about doing what can be done about internet-based harm and not throwing hands up or letting romantic ideas about the internet and expression interfere.

After reading the case I tweeted these words and promised follow up. In keeping with my custom I’ll keep it short, in part by giving reference to an editorial by Neil Turkewitz in The Hill in which he applauds the Equustek decision. Mr. Turkewitz explains that the majority decision is a sensible response to arguments based on the “theory of cyber-libertarian ideology” that has been embraced by internet companies and freedom of expression advocates alike:

The decision in Equustek doesn’t answer all questions, and courts and policy makers globally will need to continue to closely examine the proper scope of national jurisdiction with respect to conduct that impacts multiple jurisdictions. Indeed, as I’ve written before, “I’m not unsympathetic to Google’s concerns. As a player with a global footprint, Google is legitimately concerned that it could be forced to comply with the sometimes-oppressive and often contradictory laws of countries around the world. But that doesn’t make it — or any other Internet company — unique. Global businesses have always had to comply with the rules of the territories in which they do business … There will be (and have been) cases in which taking action to comply with the laws of one country would place a company in violation of the laws of another. But principles of comity exist to address the problem of competing demands from sovereign governments.”

Mr. Turkewitz is saying that we cannot relax our laws for internet players like Google – especially given its role in an “internet of Backpage, of ISIS recruitment, of cyber-bullying, of phishing, of ransomware and revenge porn, of cyber-espionage, of trafficking in counterfeit and pirate content.” The majority of the Court did agree, with Justice Abella stating “The answer turns on classic interlocutory injunction jurisprudence” as if to say, “What’s the problem here?”

The only other point I’ll raise is about the dialogue between majority and minority about necessity and efficacy. The majority believed the order to be necessary and effective and the minority did not, neither side spending any time explaining the divergence. Here is the statement that encapsulates the minority view:

The most that can be said is that the Google Order might reduce the harm to Equustek which Fenlon J. found “Google is inadvertently facilitating” (para. 152). But it has not been shown that the Google Order is effective in doing so. As Google points out, Datalink’s websites can be found using other search engines, links from other sites, bookmarks, email, social media, printed material, word-of-mouth, or other indirect means. Datalink’s websites are open for business on the Internet whether Google searches list them or not. In our view, this lack of effectiveness suggests restraint in granting the Google Order.

Given our courts are charged with protecting rule of law and given the impossibility of totally controlling the internet, this statement is downright depressing. Very simply, we must have resort to harm reduction because it is all we will ever have. Without harm reduction, we have no rule of law.

Google Inc. v. Equustek Solutions Inc., 2017 SCC 34 (CanLII).


Ontario arbitrator upholds discharge for Facebook postings

On May 15th, Arbitrator Trachuk upheld the discharge of a short service crane operator for posting disparaging and sexually explicit comments about a female coworker on his Facebook. The decision is fact specific and not surprising. Arbitrator Trachuk, however, does make the following statement about admissions and apologies (in the context of a social media offence) that is sensible and of note:

The union asserts that the grievor’s apology is another mitigating factor. The grievor did apologize to the company in his first meeting and offered to apologize to X. An admission and an apology are not exactly the same thing. An admission after a person has already been caught is not worth much. The grievor’s offense was visible on his Facebook for many people to see for many hours. Therefore, admitting he had posted the comments was not the act of accountability that it would have been if he had come in and confessed before anyone had complained. However, a person may still be truly sorry after he is caught, although such apologies usually appear to be self-serving. That is why a grievor who wants to persuade an arbitrator about his sincerity will testify. This grievor did not. The grievor’s admission and apology can only be considered minor mitigating factors due to their timing and the grievor’s failure to testify.

United Steel Workers of America, Local 9548 and Tenaris Algoma Tubes Inc. (15 May 2014, Trachuk).

Court says no to production of 1100 Facebook photos

On September 6th, Master Muir of the Ontario Superior Court of Justice declined to order production of approximately 1100 photos that a personal injury plaintiff posted to her Facebook friends. The plaintiff employed the “I’ve got nothing to hide” approach by filing the photos under seal with an accompanying affidavit, an approach also used effectively last year in Stewart v Kempster. Master Muir held that pictures of the plaintiff happy and socializing were not relevant and that there was no reason to believe that the plaintiff had failed to produce pictures of engagement in physical activity.

Garacci v Ross, 2013 ONSC 5627 (CanLII).

Facebook’s Graph Search: New Privacy Concerns?

According to a CBC News article (here), early reviews of Facebook’s new Graph Search feature are raising privacy concerns.  The search feature appears to be eerily effective in mining Facebook users’ information in responding to search queries.

For employers who may be considering using social media to verify information about current or prospective employees, the depth of information revealed by Graph Search highlights the risk that obtaining information through social media could amount to an invasion of privacy, or conflict with human rights laws (see the Ontario Human Rights Commission’s policy on using Facebook information).  Employers should tread carefully before using social media to obtain information about current or prospective employees, since the resulting information (even if obtained inadvertently) could create unanticipated liabilities.

Order to Disclose Anonymous Postings Denied (Ontario)

On July 20th, Justice Carole Brown of the Ontario Superior Court of Justice declined to order production of information that would tend to identify individuals who anonymously posted statements on a municipal affairs website.

Justice Brown held that the plaintiff did not meet her burden of establishing a prima facie case of defamation because she failed to provide sufficient particulars and failed to serve a timely notice of intended action in defamation. While the motion was disposed of on these technical grounds, Justice Brown also stressed the importance of the prima facie case standard given the statements the plaintiff alleged to be defamatory related to her former political office:

I am cognizant, in the present case, that the alleged defamatory statements were made in the context of a hard-fought political campaign. They clearly related to the mayoral position and the governance of the Mayor, councillors and the municipal government generally. In ensuring that proper weight is given to the important value of freedom of expression, particularly in the political context, the importance of the stringent prima facie test is necessary to protect and balance the public interest in favour of disclosure with the competing interests of privacy and freedom of expression.

The Canadian Civil Liberties Association intervened in opposition to the plaintiff’s motion.

Morris v. Johnson, 2011 ONSC 3996 (CanLII).

Advanced Social Media Management for Employment Law Practitioners

Here are some slides I used to facilitate a discussion between a group of in-house employment counsel and me and three of my Hicks Morley colleagues on Friday. We dealt with two common and difficult scenarios for employers I called “The Outside Aggravator” and the “The Wikileaks Scenario” and also the topic of online investigations. I hope these are helpful in provoking good throught.

Social Media and Municipalities

Here’s a social media presentation I did yesterday at the Ontario Municipal Insurance Exchange’s annual professional development day.I’ve presented most of this content before, but my take on social media management is slowly evolving.

Thanks to the post-presentation discussion yesterday I have a couple of good new issues to ponder: (1) can municipalities bar counselors from tweeting the contents of open council meetings? and (2) can municipalities bar counselors from texting during open and/or closed meetings of council? I expressed some qualified views yesterday that I’m not yet ready to print, but am very intrigued and will follow-up on these issues. Thanks OMEX!

Employee benefits…there’s an app for that!

It was only a matter of time before app-mania struck the pension and benefits industry.  In the past few weeks, it seems like  industry publication has an article about another service provider launching an app or using social media as a communications tool.

In recent years, we’ve seen the rise of auto-enrollment, online planning tools, employee websites and portals, but the introduction of apps may bring employee engagement and access to their benefit or retirement savings information to a new level.  For example, Sun Life Financial has announced that it plans to offer a free mobile application for group benefits and group retirement and savings plan members.  The app will allow plan members to submit benefit claims or check the balance of their retirement plan accounts.

At a time when defined contribution plan sponsors are concerned about the lack of engagement by members responsible for investing their plan assets, the advent of apps has the potential to increase participation and interaction.  The ability to see your pension plan account balance at the press of a button (or tap of the screen as the case may be) also enhances transparency and may help increase member awareness and education.

Other benefit providers are also jumping on the app-bandwagon, capitalizing on the increasing number of people with smartphones.  For example, Morneau Shepell has launched “My EAP”, which will provide users with access to interactive tools, support resources (such as e-counselling) and other employee assistance programs.  Many of these features are already available on Morneau’s website, but the app enhances the ease of access for people on the go, giving access to EAP services anywhere and anytime they are needed.

The use of apps and other social media technology is creating new opportunities for communication and disclosure with pension and benefit plan members.  However, as always, apps and social media must be integrated into an overall communications strategy.  Consideration must also be had to ensuring the privacy and security of such sensitive personal information.

Specifically with reference to pension plans, plan administrators must also make sure they are complying with any applicable rules regarding the use of electronic communications.  Governments have implemented a number of rules regarding when and how electronic communications can be used in the administration of a pension plan.  I will discuss this in more detail in an upcoming post.