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Articles 1 - 15 of 15
Full-Text Articles in Privacy Law
Submission Of The Citizen Lab (Munk School Of Global Affairs, University Of Toronto) To The United Nations Working Group On Enforced Or Involuntary Disappearances, Siena Anstis, Ronald J. Deibert, Émilie Laflèche, Jonathon W. Penney
Submission Of The Citizen Lab (Munk School Of Global Affairs, University Of Toronto) To The United Nations Working Group On Enforced Or Involuntary Disappearances, Siena Anstis, Ronald J. Deibert, Émilie Laflèche, Jonathon W. Penney
Commissioned Reports, Studies and Public Policy Documents
No abstract provided.
Understanding Chilling Effects, Jonathon W. Penney
Understanding Chilling Effects, Jonathon W. Penney
Articles & Book Chapters
With digital surveillance and censorship on the rise, the amount of data available unprecedented, and corporate and governmental actors increasingly employing emerging technologies like artificial intelligence and facial recognition technology for surveillance and data analytics, concerns about “chilling effects,” that is, the capacity for these activities to “chill” or deter people from exercising their rights and freedoms, have taken on greater urgency and importance. Yet, there remains a clear dearth in systematic theoretical and empirical work points. This has left significant gaps in understanding. This Article has attempted to fill that void, synthesizing theoretical and empirical insights from law, privacy, …
Platforms, Encryption, And The Cfaa: The Case Of Whatsapp V Nso Group, Jonathon W. Penney, Bruce Schneier
Platforms, Encryption, And The Cfaa: The Case Of Whatsapp V Nso Group, Jonathon W. Penney, Bruce Schneier
Articles & Book Chapters
End-to-end encryption technology has gone mainstream. But this wider use has led hackers, cybercriminals, foreign governments, and other threat actors to employ creative and novel attacks to compromise or workaround these protections, raising important questions as to how the Computer Fraud and Abuse Act (CFAA), the primary federal anti-hacking statute, is best applied to these new encryption implementations. Now, after the Supreme Court recently narrowed the CFAA’s scope in Van Buren and suggested it favors a code-based approach to liability under the statute, understanding how best to theorize sophisticated code-based access barriers like end-to-end encryption, and their circumvention, is now …
Canadian Privacy Law And The Post-War Freedom Of Information Paradigm, Jonathon W. Penney
Canadian Privacy Law And The Post-War Freedom Of Information Paradigm, Jonathon W. Penney
Articles & Book Chapters
An overemphasis on technology among Canadian privacy scholars has neglected other important historical factors in the development of privacy law. The chapter aims to help fill that void through a case study examining how a broader Post War paradigm, centred on freedom of information, impacted on Canada's most important early privacy laws, including Canada's first privacy law - Part VI of the Canadian Human Rights Act (1977); the federal Privacy Act (1983); and the Personal Information Protection and Electronic Documents Act (PIPEDA)(2000). The case study suggests that despite wider concerns about privacy when each law was enacted, those concerns were …
Revisiting The “Private Use Exception” To Canada’S Child Pornography Laws: Teenage Sexting, Sex-Positivity, Pleasure, And Control In The Digital Age, Lara Karaian, Dillon Brady
Revisiting The “Private Use Exception” To Canada’S Child Pornography Laws: Teenage Sexting, Sex-Positivity, Pleasure, And Control In The Digital Age, Lara Karaian, Dillon Brady
Osgoode Hall Law Journal
In R v Sharpe, the Supreme Court of Canada read in a “private use exception” to the offence of possessing child pornography. The Court reasoned that youths’ self-created expressive material and private recordings of lawful sexual activity—created by, or depicting the accused and held by the accused exclusively for private use—would pose little or no risk to children and may in fact be of significance to adolescent self-fulfillment, self-actualization, sexual exploration, and identity. Fundamental changes in the technological, social, sexual, and legal landscape since Sharpe have resulted in a lack of clarity regarding the exception’s scope. Federal and provincial police …
“O! They Have Lived Long On The Alms-Basket Of Words”: Enhancing Efficacy And Reducing Cost By Limiting The Role Of Law And Lawyers In Defamation Disputes, Andrew Scott
Osgoode Hall Law Journal
To triangulate the individual and social interests in reputation and free speech, the common law has generated an unwieldy corpus of technical rules and counterfactual assumptions. This complexity entails enormous cost and opportunities for game-playing by astute, well-resourced litigants. Neither reputation nor free speech is well-served by reform initiatives that focus mainly on amending the substantive law. This paper offers a critical assessment of a proposal that might better address complexity and cost. This comprises the inextricable combination of two initiatives: repeal of the ‘single meaning rule’ which promises to simplify the court’s task, but instead generates complexity in defiance …
Defamation, Privacy And Aspects Of Reputation, Andrew T. Kenyon
Defamation, Privacy And Aspects Of Reputation, Andrew T. Kenyon
Osgoode Hall Law Journal
Unlike the commonplace statement that defamation law protects reputation, this article suggests that it only protects aspects of reputation. Previously, defamation was often the only avenue of legal protection for reputation worth examining, but now privacy actions also offer an avenue of protection for aspects of reputation in many jurisdictions. In other words, informational privacy law now protects aspects of reputation, as does defamation law. Recognizing this fact leads to the suggestion that exactly what each action—defamation and informational privacy—seeks to protect could be stated more concisely. This exercise, undertaken in this article, draws on classic defamation law analysis by …
Internet Intermediary Liability In Defamation, Emily B. Laidlaw, Hilary Young
Internet Intermediary Liability In Defamation, Emily B. Laidlaw, Hilary Young
Osgoode Hall Law Journal
Given the broad meaning of publication in defamation law, internet intermediaries such as internet service providers, search engines, and social media companies may be liable for defamatory content posted by third parties. This article argues that current law is not suitable to dealing with issues of internet defamation and intermediary responsibility because it is needlessly complex, confusing, and may impose liability without blameworthiness. Instead, the article proposes that publication be redefined to require a deliberate act of communicating specific words. This would better reflect blameworthiness and few intermediaries would be liable in defamation under this test. That said, intermediaries profit …
Restoring Accountability In Freedom Of Expression Theory: Public Libel Law And Radical Whig Ideology, Randall Stephenson
Restoring Accountability In Freedom Of Expression Theory: Public Libel Law And Radical Whig Ideology, Randall Stephenson
Osgoode Hall Law Journal
As leading common law jurisdictions grapple with the Internet’s impact on defamation law, comparative legal scholarship has revealed long-standing problems with its underlying theoretical justifications. Specifically, public libel doctrine is commonly supported by appeals to democratic theory in the abstract. Accountability concerns most relevant to adjudicating public libel cases are thus routinely overlooked. This article aims to diagnose the causes of these theoretical inaccuracies, describe their impact on public libel law, and translate their significance for law reform. Through exploring eighteenth-century libertarian thought, we highlight the foundational importance of accountability and the checking function rationale to democratic theory and governance. …
Re-Imagining Resolution Of Online Defamation Disputes, Emily B. Laidlaw
Re-Imagining Resolution Of Online Defamation Disputes, Emily B. Laidlaw
Osgoode Hall Law Journal
If an individual or company is defamed online, they have two options to resolve the dispute, absent a technical solution. They can complain to an intermediary or launch a civil action. Both are deficient for a variety of reasons. Civil litigation is often unsuitable given the nature of online communications (across different platforms, jurisdictions, involving multiple parties, and spread with ease), the length and cost of litigation, and the ineffectiveness of traditional remedies. Intermediary dispute resolution processes can sometimes be effective, but lack industry standards and due process, place intermediaries in pseudo-judicial roles, and depend on the changeable commitments of …
Textual Privacy And Mobile Information, Simon Stern
Textual Privacy And Mobile Information, Simon Stern
Osgoode Hall Law Journal
The Supreme Court of Canada’s decision in R v Marakah attempted to resolve the privacy status of text messages under section 8 of the Charter, but offered an incomplete solution because it failed to address the normative basis for protecting such communications. Despite the complexity of section 8 analysis (which itself is a product of multiple and inconsistent tests used to answer the same questions), the privacy of text messages allows for a relatively simple analysis. Normatively speaking, letters, email, and text messages all attract the same basic privacy interest, and should be treated analogously. However, if the police have …
Law, Metaphor, And The Encrypted Machine, Lex Gill
Law, Metaphor, And The Encrypted Machine, Lex Gill
Osgoode Hall Law Journal
The metaphors we use to imagine, describe, and regulate new technologies have profound legal implications. This article offers a critical examination of the metaphors we choose to describe encryption technology and aims to uncover some of the normative and legal implications of those choices. The article begins with a basic technical backgrounder and reviews the main legal and policy problems raised by strong encryption. Then it explores the relationship between metaphor and the law, demonstrating that legal metaphor may be particularly determinative wherever the law seeks to integrate novel technologies into old legal frameworks. The article establishes a loose framework …
Search Engines And The Right To Be Forgotten: Squaring The Remedy With Canadian Values On Personal Information Flow, Andrea Slane
Search Engines And The Right To Be Forgotten: Squaring The Remedy With Canadian Values On Personal Information Flow, Andrea Slane
Osgoode Hall Law Journal
The Office of the Privacy Commissioner of Canada (“OPC”) recently proposed that Canada’s private sector privacy legislation should apply in modified form to search engines. The European Union (“EU”) has required search engines to comply with its private sector data protection regime since the much-debated case regarding Google Spain in 2014. The EU and Canadian data protection authorities characterize search engines as commercial business ventures that collect, process, and package information, regardless of the public nature of their sources. Yet both also acknowledge that search engines serve important public interests by facilitating users’ search for relevant information. This article considers …
From Scanning To Sexting: The Scope Of Protection Of Dignity-Based Privacy In Canadian Child Pornography Law, Andrea Slane
From Scanning To Sexting: The Scope Of Protection Of Dignity-Based Privacy In Canadian Child Pornography Law, Andrea Slane
Osgoode Hall Law Journal
The Canadian approach to privacy rights in one's body is embedded in the relationship between interests in privacy, bodily integrity, and human dignity. Clarifying these interests is complicated by Canada's middle-ground stance between the European "dignity-based" approach to privacy and the US "liberty-based" orientation. The Canadian approach is closer to the European model when intrusions upon the body are conceived as wholly or mostly non-consensual (e.g., strip searches, voyeurism, and most child pornography). However, once consent plays a potentially determinative rote, the US liberty-based approach gains ground. This reluctance to fully align dignity with privacy results in confusion about the …
The Ideal Victim, The Hysterical Complainant, And The Disclosure Of Confidential Records: The Implications Of The Charter For Sexual Assault Law, Lise Gotell
Osgoode Hall Law Journal
This article explores the current state of Canadian law on the production and disclosure of complainants' records to reflect upon the implications of the Canadian Charter of Rights and Freedoms for Canadian sexual assault law and jurisprudence. Some scholars assert that the Supreme Court's decision in R. v. Mills, upholding section 278 of the Criminal Code governing access to complainants' records, constitutes an erosion of accuseds' rights and an unjustified compromise of constitutional standards. By contrast, this article demonstrates that R. v. Mills is a highly contradictory decision that can be read as creating an interpretation of section 278 that …