How the Digital Privacy Act S-4 could bring copyright trolls to Canada

Canada's system of copyright enforcement is internationally recognized as a next-generation approach -- striking a balance between the rights of artists and creators and those of Internet users. Our system is designed to protect people from false claims of infringement and needless takedowns of legitimate online speech.

We have cause to be proud of this made-in-Canada solution that was won after a lengthy consultation and only came fully into force this past January. The system is known as "notice and notice" and obliges an Internet Service Provider (ISP) to deliver notices alleging copyright infringement to its customers.  

When compared with the system in place for our American neighbours, the advantages of the Canadian approach become clear. In the U.S. "notice and takedown" system, content is removed by the host when a notice is received, and in most cases before any determination has been made by a court about whether the material is truly infringing copyright.

Unfortunately, when copyright law is misused, it can have such chilling effects on free speech that it acts as a form of censorship. And under copyright regimes that allow for takedown provisions, we see that examples of this are becoming more and more frequent.  

That is far from saying that Canada's copyright regime is perfect. As was illustrated by the flawed implementation of our notice-and-notice system this January, we clearly haven't gotten the balance just right yet.

Already, the law is being abused by U.S. big media firms, who are sending huge volumes of notices to Canadians through their ISPs. In many cases these notices contain information that is misrepresenting Canadian law, such as demanding settlements or threatening disconnection from the Internet -- all on the basis of alleged infringement associated with an IP address, not a person.

Canadians have been calling on Industry Minister James Moore to fix the rules, and implement a template system for notices that would standardize the process. Minister Moore should also ensure that Canadians are receiving accurate information about the possible legal ramifications of the notice, in the context of our domestic laws.

But what does all this have to do with Canada's Digital Privacy Act, Bill S-4? This bill aims to amend Canada's privacy laws and implement much-needed regulations around security breach disclosure requirements.  

On the whole, the bill has been welcomed by experts, except for one glaring flaw: the bill expands the voluntary warrantless disclosures of personal information, not to law enforcement agencies, but rather to other private companies, and without the consent or even the knowledge of the person whose private information is being shared.

Under S-4, these voluntary disclosures are allowed where there is an investigation into a contract breach or alleged legal violation. While this may appear reasonable, it is in fact a massively broad scope. Consider the dozens of contracts that an individual signs every year without even reading them -- most infamously Terms of Service agreements.

And most grievously, S-4 would render the Canadian notice-and-notice system impotent, as ISPs would be empowered, with legal immunity, to disclose personal information about their customers to copyright trolls, without the consent or even knowledge of the customer affected.  

Taking into consideration the manner in which the new system is already being exploited by U.S. media firms, any extension of powers for ISPs to voluntarily make warrantless disclosures of private information would be exposing Canadians to great risk, and undermining our domestic democratic process.

Canadians are calling for James Moore to take action on this at https://openmedia.org/shakedown

Meghan Sali is Campaigns Coordinator for Free Expression with OpenMedia.org, a community-based organization that safeguards the open Internet. Steve Anderson is Executive Director of OpenMedia.org. A version of this column originally appeared in the CCPA Monitor.

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