Imagine typing a search query into Google. Not a criminal query, but one that feels uncomfortable like: “How to join a protest,” “government corruption,” “abortion rights,” or “mental health crisis.”

You pause for a moment.

You hesitate.

Then you close the tab, erase your search history, and search for something else instead.

No one has stopped you. No law prohibits the search. No police officer is standing behind you. Yet, something has changed your behaviour.

For , Associate Professor and 91��ɫ Research Chair in Artificial Intelligence, Data Governance, and the Law, understanding that moment of hesitation has become a central scholarly pursuit. Following the publication of his recent book, , Penney sat down with IP Osgoode researchers to discuss why people often silence themselves in the face of surveillance, uncertainty, and power, and why prevailing legal theories fail to adequately explain this phenomenon.

The origins of Penney's work can be traced back to the summer of 2013, when Edward Snowden's disclosures exposed the unprecedented scale of global mass surveillance. The revelations transformed public debates about privacy and state power, but they also raised a deeper question: what happens to human behaviour when people know they might be watched?

For Penney, the answer lies in the phenomenon known as “chilling effects.” Typically, in legal scholarship, chilling affects are said to occur when individuals refrained from speaking, searching, associating, or participating in public life because they perceive a risk of adverse consequences. Yet Penney argues that the conventional understanding of chilling effects is too narrow.

For decades courts and scholars have largely viewed chilling effects through an individualistic lens. Under this traditional account, individuals are assumed to be rational actors who engage in cost benefit calculations: they encounter a vague law, fear illegal sanction, and choose to self-censor. But what if the person who abandoned that Google search was not calculating legal risks at all?

We like to think of ourselves as rational and independent individuals who think for ourselves and do not ‘follow the herd,’ Penney explained. Research in social psychology, however, paints a different picture. Drawing on Solomon Asch’s famous conformity experiments and a broader body of behavioural scholarship, Penney argues that chilling effects are better understood as a form of conformity and compliance. Human beings are deeply social creatures whose behaviour is shaped by norms, expectations, and perceptions of authority. Often, we modify our conduct not because we have been directly threatened, but because we sense that certain actions may expose us to scrutiny or disapproval. In this sense, the hesitation before a sensitive search query is not merely an individual decision. It reflects a broader social and psychological process.

“We are, at a very fundamental level, wired to be chilled,” Penney observed. Throughout human history, conformity in response to threats promoted safety and survival. In the digital age, many of those same instincts are activated by surveillance technologies, data collection practices, and online monitoring. To understand when chilling effects are most likely to occur, Penney identifies four key factors.

The first is observation. People are more likely to modify their behaviour when they know or suspect that they're being watched. Digital surveillance systems amplify this effect by making observation pervasive, persistent, and often invisible.

The second factor is uncertainty. The less certain individuals are about how rules will be interpreted or enforced, the more likely they are to conform. Ambiguous laws, opaque algorithms, and unclear policies can all generate chilling effects.

Third is personalization. Chilling affects intensify when individuals feel specifically targeted or singled out. Personalized surveillance, threat, or interventions are often more powerful than generalized monitoring.

Finally, there is power and authority. People are more likely to alter their behaviour when observation or intervention originates from institutions that possess significant authority, whether governments, employers, platforms, or other powerful actors.

Together, these factors provide a framework for understanding why seemingly voluntary acts of self-censorship emerge across a wide range of contexts. Importantly, Penney’s theory is supported by empirical evidence. Following the Snowden revelations, he conducted a large-scale study examining traffic to Wikipedia articles related to privacy-sensitive topics, including “terrorism” and “political violence.” The findings were striking. Views of those articles dropped by approximately 25 percent after the disclosures and remained depressed for more than a year. The significance of this study was not that people stopped engaging in unlawful conduct. Rather that millions of ordinary individuals appeared less willing to seek information about lawful but potentially sensitive subjects.

Returning to our opening example, the concern is not whether someone searched for “terrorism.” The concern is that countless people may have decided not to search at all. This distinction becomes particularly important when considering whether chilling effects are always harmful. Penney argues that some forms of chilling are socially desirable. We generally want laws to discourage harassment, threats, discrimination, and other harmful conduct. The challenge lies in distinguishing between chilling harmful behaviour and chilling democratic participation.

One example emerged from Penney’s research on anti-harassment protections. Conventional legal theory might predict that such laws would suppress expression. Yet his work found that informing women about these protections often increased their willingness to participate online. Rather than chilling speech, the laws reduced the chilling effects imposed by private abusers. In other words, affective regulation can sometimes create the conditions necessary for greater participation and expression.

These insights have significant implications for contemporary debates about artificial intelligence and technology regulation. Penney noted that powerful technology companies frequently argue that privacy laws, copyright protections, or AI regulations will “chill innovation.” He remains skeptical of such claims and argues that large technology firms possess substantial resources, legal teams, and market power. They are unlikely to stop innovating because of regulation. The more pressing concern, Penney argues, is whether unregulated technologies chill the rights and freedoms of the public. That concern becomes even more urgent as societies move toward what Penney describes as “superveillance”: systems that combine artificial intelligence, facial recognition, big data analytics, and automated enforcement. Such systems bring together all four chilling factors simultaneously. They enable constant observation, generate uncertainty through opaque algorithmic decision making, personalize interventions, and operate through powerful institutions. The result is not simply surveillance, but an environment that encourages conformity and predictability. For Penney, addressing these risks requires more than individual privacy protections. It demands structural reforms, including greater transparency, stronger oversight of AI systems, and restrictions on technologies that pose unacceptable threats to fundamental freedoms.

Ultimately Chilling Effects asks us to reconsider a simple but profound question: why did we close that browser tab? The answer matters because democratic societies depend not only on the freedoms we formally possess, but also on our willingness to exercise them.

The greatest threat to freedom may not be censorship or direct coercion. It may be the quiet, almost imperceptible moments in which people decide not to speak, not to search, not to participate, and not to question.

No one told us to stop. Yet somehow, we felt the urge to stop anyway. At what cost?

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By Xiang Zhang

“To write poetry after Auschwitz is barbaric.” With this stark provocation, articulated not a prohibition on artistic expression, but a profound ethical challenge to culture itself: how can expression remain meaningful in the aftermath of catastrophe, and what conditions must exist for culture to serve as a site of witness, critique, and hope? It was this philosophical tension—between the fragility and necessity of expression—that framed Professor ’s 2026 at the University of Toronto Faculty of Law. Like Adorno, Silbey’s inquiry was animated by a concern with the conditions under which expression remains possible, and by the recognition that cultural and legal structures can either sustain or foreclose the emancipatory potential of art, knowledge, and communication.

Silbey’s central thesis is that contemporary copyright law is undergoing a gradual but profound transformation. Doctrines historically designed to facilitate the circulation of ideas and preserve the public domain are increasingly weakened, enabling the commodification and enclosure of knowledge, facts, and expressive fragments. Where copyright once functioned as a structural safeguard for expressive freedom, it now frequently operates as a mechanism for proprietary control, allowing private actors to assert ownership over the fundamental materials of communication. In this respect, Silbey’s critique closely parallels Adorno’s broader diagnosis of modern culture: both identify systemic forces that transform culture from a domain of human freedom into an instrument of economic rationality, commodification, and control. In both accounts, culture’s emancipatory function is displaced by the logic of ownership and monetization.

Silbey situated this doctrinal and cultural transformation within the broader political context of the contemporary United States, emphasizing that artistic and expressive practices are essential forms of democratic witness, particularly during periods of political instability and crisis. Expression, she argued, is not merely aesthetic but ethical; it enables individuals and communities to bear witness to injustice, preserve memory, and imagine alternative futures. The fundamental purpose of copyright law, therefore, must be to facilitate, rather than frustrate, this expressive function. Yet, as Silbey observed, copyright law, once a “public domain protecting doctrine” is now suffering from what she described as a “death by a thousand cuts”: a gradual erosion driven by expanding proprietary claims, restrictive licensing regimes, and doctrinal narrowing. Echoing Marx’s metaphor of capital as a vampire sustained by extraction, Silbey suggested that contemporary copyright increasingly survives through the extraction of control over culture itself.

To illustrate this erosion, Silbey anchored her lecture in three foundational doctrines of copyright law: the exclusion of facts from copyrightability, the de minimis defense, and personal use liberties. These doctrines, deeply rooted in both common law and transnational copyright traditions, have historically functioned as structural limits on copyright’s reach, preserving the public domain and ensuring the continued circulation of knowledge.

The first doctrine, the exclusion of facts from copyright protection, reflects the foundational principle that facts belong to the public domain. Although this principle was affirmed by the United States Supreme Court in , Silbey argued that the decision oversimplified the nature of facts by characterizing them as merely “discovered” rather than socially produced. Drawing on the history of journalism and scientific inquiry, she emphasized that facts are constructed through institutional processes of verification, expertise, and consensus. This insight carries profound contemporary implications, as private entities increasingly assert proprietary claims over data, technical standards, and functional information. Silbey pointed to examples such as insurance companies asserting copyright over climate risk assessments, private organizations licensing building codes incorporated into law, and manufacturers restricting access to repair manuals for essential technologies. These practices represent not merely legal disputes but a broader cultural shift toward the privatization of knowledge, threatening public safety, scientific progress, and democratic accountability.

The second doctrine, the de minimis defense, historically permitted courts to dismiss claims involving trivial or insignificant copying, recognizing that expressive communication necessarily involves reference, quotation, and reuse. Silbey argued that this doctrine has been significantly weakened in the digital age. Courts increasingly subject even minor uses to complex fair use analyses, raising the costs and risks of expression. At the same time, industry practices have normalized pervasive licensing, transforming even incidental uses into licensable events. The result is a cultural environment in which expressive practices once understood as ordinary and permissible are now subject to proprietary surveillance and control.

The erosion of personal use liberties represents perhaps the most profound transformation identified by Silbey. Historically, ownership of physical copies conferred broad autonomy, enabling individuals to lend, resell, preserve, and adapt cultural works. The transition to digital distribution has replaced ownership with conditional licensing, fundamentally altering the relationship between individuals and culture. Through cases such as , , and , courts have narrowed the scope of personal use, treating activities once understood as legitimate cultural participation as acts of infringement. As Silbey observed, practices central to cultural life: reading, sharing, preserving, and referencing, are increasingly framed as morally and legally suspect.

Silbey concluded her lecture by invoking Jessica Litman’s observation that personal use is not incidental but central to copyright’s constitutional purpose. Copyright was never intended to prohibit engagement with culture, but to facilitate it. The freedom to read, share, and build upon existing works is essential to cultural vitality and democratic life. The erosion of these freedoms reflects not merely doctrinal change, but a broader transformation in how culture itself is governed.

In this light, Silbey’s lecture returns us to the ethical question posed by Adorno’s opening provocation. Adorno’s warning that “to write poetry after Auschwitz is barbaric” was ultimately a reflection on the fragility of expression in the face of systemic forces that threaten to render culture hollow, commodified, and incapable of bearing witness. Silbey’s critique suggests that contemporary copyright law risks producing a parallel condition, not through violence, but through enclosure. When facts become property, fragments become licensable, and personal engagement becomes suspect, the structural conditions necessary for expression itself begin to erode. In defending these doctrinal edges, Silbey ultimately affirms that artistic expressive practices remain indispensable forms of democratic witness, and that copyright law itself bears a profound responsibility to preserve the structural conditions that enable such witnessing, by safeguarding access to knowledge, protecting the public domain, and ensuring that the legal framework governing culture facilitates, rather than forecloses expression, during periods of political instability and crisis.

Xiang Zhang is a doctoral student at Osgoode Hall Law School and an IP Osgoode Research Fellow, with a strong interest in advancing open-source and open access to knowledge.

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Ariel Goldberg is a 1L JD Candidate at Osgoode Hall Law School.

Usually, a dog toy’s squeak echoes throughout a home. A Jack Daniel’s bottle-shaped dog toy called “Bad Spaniels” will be heard at the U. S. Supreme Court and could bark for trademark use in expressive works. Will it bite?

Jack Daniel’s Properties, Inc.’s (“Jack Daniel’s”) petition to the U. S. Supreme Court explains that the case addresses a significant reoccurring tension in trademark and trade dress protection under the U. S.’s Lanham Act: VIP Products LLC (“VIP Products”) runs the e-commerce website . Under the shopping category “”, VIP Products sells an array of dog toys that parody existing brands’ trademarks and trade dress including a Mountain Dew bottle that reads “”, a Baileys bottle called “” and, the toy at issue, a nearly identical Jack Daniel’s Old No. 7 Brand Tennessee Sour Mash Whiskey bottle altered to say “.”

Image from .

Initially, that the “Bad Spaniels” dog toy likely causes consumer confusion and tarnishes Jack Daniel’s marks. On appeal, the decision holding that the likelihood-of-confusion test would not apply because the toy is an expressive work with First Amendment protection of freedom of speech. The Ninth Circuit applied the Rogers Test from the Second Circuit’s (1989) decision. free speech and trademark protection by allowing the use of trademarks in expressive works if artistically relevant and not explicitly misleading. Here, the trademark use was artistically relevant to the , the toy was not explicitly misleading because VIP Products altered the trade dress. The toy had a disclaimer on the back of the toy that stated that Jack Daniel’s was not affiliated.

Jack Daniel’s petition argues that the Ninth Circuit’s “” decision allowing for companies similar to VIP Products to tarnish trademarks and create mass marketplace confusion. Jack Daniel’s that the courts of appeal are divided on this issue, specifically that the Ninth Circuit’s use of heightened First Amendment Protection for humorous trademark use conflicts with the decisions of other Circuit courts. . These circuits have not used the First Amendment and instead applied the traditional likelihood-of-confusion test with consideration towards the humor or parody as a factor against the mark holder. For example, in , the Fourth Circuit held that Haute Diggity Dog’s “ successfully parodied Louis Vuitton’s handbags through applying the likelihood-of-confusion test with humour as a factor.

Essentially, Jack Daniel’s wants the U. S. Supreme Court to create a higher bar for parody works which would create more ease for mark holders to address consumer confusion and dilution from parodies. The main concern is the use of humour to gain immunity. , the academic director of Fordham University Fashion Law Institute, that “every brand with a beloved trademark is worried about seeing cheesy versions of its primary corporate asset used to sell not only dog toys, but also  a vast range of other novelties that, over time, could cheapen the perception of the brand.” In addition, that dog toys are expressive works because its purpose is to be played with by dogs.

However, the argument to raise the bar for parody works is contentious. , a professor at Harvard Law School and author of a brief opposing Jack Daniel’s , highlights that trademark law exists to protect consumers from fraudulent products rather than clear humorous uses of existing trademarks and trade dress. expressions on a canvas are not meaningfully legally distinctive from expressions on a dog toy.

The U. S. Supreme Court decision will be a significant precedent. In Mason Rothschild claimed his fur-covered Birkin bag NFTs, MetaBirkins, satisfied the Rogers Test by being artistically relevant and not explicitly misleading. Clearly, the humorous use and reworking of existing trademarks and trade dress is here to stay making Jack Daniel’s shot at heightened First Amendment protection highly relevant. Time will tell if Jack Daniel’s is barking up the wrong tree.

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Nikita Munjal is the IPilogue Content Manager, an IP Innovation Clinic Fellow, and a third-year JD/MBA Candidate at Osgoode Hall Law School.

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In January 2021, the then-acting president of the United States, Donald Trump, from Facebook for statements he had made in the immediate aftermath of the violent insurrection which took place at Capitol Hill. Trump’s comments were seemingly the last straw for the social media giant who had repeatedly cited its commitment to upholding free speech in defending its stance on Trump’s use of inflammatory language on the platform.

However, Facebook’s decision in January was not final. When accounts are banned or posts are removed from Facebook or its subsidiary, Instagram, users can appeal the decision to the quasi-judicial body, Alternatively, Facebook can refer cases to FOB to determine whether its decision had been fair, as was the case here.

FOB’s Decision

In early May 2021, the that Facebook was justified in suspending Trump’s accounts. However, they stated that it was “not appropriate” for Facebook to impose an indefinite suspension, which contravened Facebook’s standard operating procedure. Facebook’s penalties usually pertain “removing the violating content, imposing a time-bound period of suspension, or permanently disabling the page and account” (at p.1). FOB gave Facebook six months to reexamine its arbitrary penalty and give an appropriate penalty based on the gravity of the violation and the prospects of future harm.

Facebook’s Response

In June 2021, approximately a month after FOB’s decision and within the six-month time period, Facebook : Trump’s suspension from Facebook and Instagram will last for two years, effective from the initial suspension date. However, at the end of the two-year period, Facebook will reassess whether the risk to public safety has receded.

Unsurprisingly, this set of decisions has garnered mixed reactions. Some writers have stated that this is a victory for Trump, who could return to the social media platform in time for a potential 2024 presidential run. Others have argued that this is a victory for Facebook since it could decide whether to continue to the suspension or allow Trump back on its platforms ��based on the political landscape at the time while hiding their rationale behind the risk posed to public safety.

Broader Implications for Free Speech on Social Media

Trump’s social media presence during his presidency exacerbated the discourse around regulation and moderation of content posted on social media. Specifically, questions have arisen as to whether corporations or governments are better positioned to regulate content on social media.

Some industry members including FOB member and former prime minister of Denmark, Helle Thorning-Schmidt, are calling for . These proponents cite its funding, autonomy from Facebook, and diverse membership as reasons for its potential success in regulating the space. However, not everyone agrees with that position. For one, FOB seems powerless in for its role leading up to the insurrection. This is not to suggest that Facebook is the only social media platform grappling with finding an appropriate balance between promoting free speech and preventing harm; however, its role cannot be understated.

Critics argue that FOB’s decisions by focusing too much on corporate oversight. Instead, the focus should be placed on passing legislation that curtails Big Tech’s business models and protects users from their voraciousness.

Currently, the Canadian federal government is preparing to unveil legislation regulating social media content. The legislation to be modeled after Germany’s NetzDG law, which requires social media platforms to remove illegal content under tight deadlines or face severe fines.

warn that following Germany’s precedent could be problematic for two reasons. First, it won’t effectively deal with content that is “lawful but awful”, that is, content that is legal but is known to create real-world harm. Given the Charter of Rights and Freedoms’ broad protections for freedom of expression in Canada, it will be difficult for the government to curb the expression of harmful ideas in public spaces. Second, the legislation could set a bad example for countries that criminalize forms of expression protected under international human rights law. Laws that impose severe penalties on social media companies for failing to remove illegal content under a nation’s laws could increase the criminalization of political dissenters and minority communities. To address these concerns, scholars suggest Canada adopt a multilateral approach by working with other rights-respecting democracies to prevent the internet from “splintering into a series of national networks.”

Ultimately, until the federal government unveils the legislation and holds consultations, it is difficult to predict its effectiveness. However, online content requires regulation, whether that be from corporate entities, governments, or something in between.

The post Facebook Bans Donald Trump for Two Years, but the Discussion on Regulating Free Speech on the Internet is Just Beginning appeared first on IPOsgoode.

In particular, Laidlaw highlighted a lack of accountability, predictability and transparency in the current handling of online speech issues. Despite the great power they wield, technology companies are understandably reluctant to face greater government regulation. They flourished in an era of light restrictions and do not welcome rigid, unresponsive policies imposed from outside. Leaving it all up to self-governance has its own problems.

In her research, she found that the technology industry has government regulation and many of the broader working groups addressing free speech, privacy and other governance issues. Tech companies prefer to band with other tech companies to create their own industry working groups. With few exceptions, those groups are voluntary. Corporations are not required to join the groups, nor are they required to comply with any recommendations issued by the groups. The result is that these corporations are not actually accountable to any outside groups for their actions or inaction.

Laidlaw also criticized the way that tech companies address complaints. When users file complaints, or have complaints filed against them, there is often little information available on the progress of issues or the potential outcome. Decisions are usually final and often opaque, leaving no opportunity for appeal. Without any information on how past complaints have been handled, there's little room for users to learn from the process -- at best, they can look to the densely written, ever-changing terms of service and privacy policies to figure out what is and isn't appropriate on a given platform.
Even aggregate information is rarely made available to the public or to researchers, so there is no information to study for trends or to spot problems in how complaints are handled. The issues that get addressed may be subjected to the whims of publicity or corporate public relations goals, rather than any systematic understanding of what is appropriate or important to take action on.

She offered a few examples of what these corporate practices look like in action:

First, she pointed to past occurrences where Facebook hosted groups dedicated to sharing rape jokes. People reported those groups to Facebook asking that they be removed as hate speech. But is a rape joke hate speech? Or is it simply a joke? Facebook’s initial stance was that these groups did not violate any of their terms of service, and they were allowed to stay. After a much greater public protest, Facebook reversed that decision, removed the groups and updated their terms of service to disallow that type of group. The new policy is a shift in how these specific complaints are dealt with, but does not alter the overall process which is complaint based and opaque. You can file a complaint, but you have no path to appeal Facebook’s decision.

Another of her examples concerned the Internet Watch Foundation (IWF), a group created by the UK ISP industry to respond to concerns about child sexual abuse photos. The group was created under threat of government regulation — if the industry did not self-regulate to the satisfaction of the government, they would be regulated externally. The IWF responds to complaints about child porn and manages a block list for UK ISPs to ensure they do not allow access to known repositories. While the IWF was created as a self-governance mechanism, it has limited oversight. Remedies for incorrectly blocked sites are minimal, and there is no notification that a site even has been blocked. She also raised concerns that the tools IWF has developed for addressing child sexual abuse photos could be expanded into other areas like copyright enforcement where the lines between what's acceptable and what's criminal or infringing are less clearly drawn.

In place of ad-hoc, inadequate mechanisms, Laidlaw proposes a new model for corporate social responsibility and governance. In this new model, governments would mandate that corporations have policies and procedures for handling free speech and human rights issues. They would have to include complaint mechanisms that are transparent, predictable and accountable. The government regulations would stop short of specifying what those processes would actually look like, leaving it up to individual corporations to develop procedures that met both their internal requirements and the government requirements.

Without a specific procedure dictated by the government, corporations would require additional support in implementing these procedures. Laidlaw suggests that support could range from sample policies to assist in drafting policies to audit tools that would allow corporations to ensure they were properly executing their procedures. With greater transparency built into the new processes, additional data would be available for research and education. Researchers could assess various policies to determine best practices, and to hold corporations accountable to their own procedures. The information could also be used to educate the public, raising their expectations about how corporations should be acting when faced with complaints.

With the history of pushback from the tech industry, getting corporate buy-in is key to the success of any initiative. Laidlaw’s model may well offer enough flexibility that corporations will accept it, without so much flexibility that they can continue to escape responsibility altogether.

Jacquilynne Schlesier is an IPilogue Editor and a JD candidate at Osgoode Hall Law School.

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Internet has changed the way information is communicated and these changes affect individuals’ right to privacy. Current privacy and personal information protection legislations, namely, Section 8 of the Charter, Privacy Act and Personal Information Protection and Electronic Documents Act along with its provincial variations, regulate gathering, use and disposal of personal information of individuals. Common law, also, provides complainants with cause of action in defamation, libel, misappropriation of personality and intrusion upon seclusion. However, in today’s digital age, these existing frameworks do not sufficiently address the issues and concerns of those who use Internet on a daily basis. The widespread use of the Internet and the consequential importance of online reputation, make it a necessity to either look for alternative ways to protect online privacy or improve the existing frameworks.

The right to be forgotten enables individuals to ask for their personal information to be removed from the Internet. This alternative solution has been at work in Europe, and if adopted in Canada, it would widen the scope of the current privacy frameworks. However, the differences between the structure of Canadian jurisprudence and European jurisprudence might impede the adoption of the right to be forgotten in Canada.

Legislations that embody the right to be forgotten, give individuals a right to demand erasure of their information. Arguably, then, these legislations have the potential to be suppressive towards freedom of expression and consequently, s.2(b) rights.

In the case that these legislations are found to be offensive to freedom of expression rights, section 1 of the Charter might be invokes to see whether or not they can be regarded as reasonable limits on rights and freedoms. However, since there are other ways to achieve the same goal as these legislations such as anonymizing published information, employing reputation systems, using expiration dates for personally identifiable data, contextualization and cognitive adjustments, the s.1 analysis might fail on the minimal impairment test.[2]

Further, public policy arguments in favour of adopting the right to be forgotten mostly focus on the rights and freedoms of one party and ignore the competing rights and freedoms of the other party to the dispute or the interest of society at large. Protecting privacy interests of individuals, societal reintegration, ability to redefine oneself and safeguarding one’s autonomy are amongst the reasons proposed for adopting the right to be forgotten.

Arguments against adopting the right to be forgotten focus on this exact shortcoming. These arguments hold that the right to be forgotten should not be adopted because in balancing individuals’ right to privacy against societal good, the latter should be upheld.

Discussion around right to be forgotten involve one prevalent question: Why should an individual have the right to decide what is relevant or irrelevant for other individuals to know or remember? And the answer would be: it depends of the circumstances. For example, in a case of revenge porn, there are strong public interest reasons that justify giving an individual, the complainant, the right to demand removal of such content.[3] However, it is more difficult to see why complainants should be given the same right in cases where, for instance, they have been given a bad online review because of the services they have provided.

Adoption of the right to be forgotten in Canada will be a radical departure from precedent. If the purpose of the right to be forgotten is to safeguard individual’s right to privacy on the Internet, then the right to be forgotten is unnecessary. This is because, as it was discussed, there are other ways to reach the same objective, which are less offensive to competing rights and freedoms.

��Nazli�� Jelveh is a JD Candidate at Osgoode Hall Law School.

[1] George Bemis professor of international law at Harvard Law school, professor of Computer Science at Harvard School of Engineering and Applied Sciences and Co-Founder, Director, and Faculty Chair, Berkman Center for Internet & Society.

[2] Michael L. Rustad & Sanna Kulevska, “Reconceptualization of The Right to Be Forgotten to Enable Transatlantic Data Flow” (2015) 28:2 Harvard J of L & Technology 349 at 382-385.

[3] Gabrille Giroday, “Ontario court expands scope of privacy tort to include ‘revenge porn’” (1 February 2016), Legal Feeds (blog), online: < http://www.canadianlawyermag.com/legalfeeds/3104/ontario-court-expands-scope-of-privacy-tort-to-include-revenge- porn.html>.

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A full Federal Circuit hearing for October 2015 to hear oral arguments.

The provision the courts are referring to is , which prohibits registrations of marks that are scandalous or immoral. The U.S. Patent and Trademark Office (PTO) uses a two-prong test to test if a mark is disparaging. First it examines what the likely meaning of the mark is. Then it determines if that meaning refers to an identifiable group and whether it is disparaging to a substantial composite of that group.

The Lanham Act has allowed for the definition of scandalous, immoral or disparaging trademarks to be left up for debate. However, the statute is not unconstitutionally vague: .

The reopening of The Slants’ case has ignited debate regarding how far governments can go in restricting an individual’s’ right to free speech with regards to trademarks. How the courts proceed in this case will have far reaching implications for the future and could result in a fundamental change of practice regarding the treatment of disparaging marks.

The band for a trademark in 2010�� in their explanation of why “The Slants” is derogatory. Originally, the group’s lead singer Simon Tam said the band’s name was not a reference to it’s members’ Asian-American ethnicity, but rather to musical chords. In with TIME magazine, Tam argued that naming the band "The Slants" was reclaiming the word from any derogatory meaning.

As a part of the defense’s argument, Tam’s lawyers ��conducted by professors from Illinois’ North Central College and New 91��ɫ which��polled members of the Asian/Pacific Islander community. This survey was done in support of Tam’s trademark registration and in it the statement “I find the name of the group The Slants to be disparaging” was posed. 16 percent of participants agreed with the statement��while 46 percent disagreed��(the remaining 38 percent��stated they neither agreed nor disagreed). When participants were asked��to answer the question under the presumption that��membership��of the band was exclusively Asian-American, a majority of respondents agreed��they did not think��the name is��disparaging.

to refuse a trademark registration writing in her ruling that “The Slants would be perceived as offensive by a substantial fraction of Asians”.

However, ��Justice Moore attacked a precedential 1981 ruling which allows individuals the right to use their mark despite PTO’s refusal to register it. ��there were constitutional reasons to re-examine whether PTO should refuse disparaging marks and arguably harm free speech. This “additional views” section holds no legal weight, but points to a possible shift in the courts’ opinions on disparaging marks.

With the possibility for a shift in the way the U.S. deals with disparaging trademarks, over whether��this could change rulings of��similar cases, including the Washington Redskins' trademark dispute. Earlier this month a by the federal Trademark Trial and Appeal Board cancelling the team's trademark registrations after its��name was deemed disparaging to Native Americans. However, until this new��Federal Circuit hearing��has taken place, the influence The Slants' case��will have is still unclear.

Would The Slants’ fate be any different if they had registered their trademark in Canada? Unlike American law, which allows applicants to continue using their mark even if it is rejected by the trademark office, .

Setting the benchmark for what is perceived as offensive “by a substantial fraction of an identifiable group” is difficult in countries as diverse as the United States and Canada. Of course there are instances where it is obvious whether a term or word is offensive to the majority of a group. However, there are many situations where it is not quite as��clear.

As both countries continue to become more diverse, the idea of what is offensive and what is not will blur even further. This raises the question of whether governments should still tightly oversee whether a mark is disparaging. The time and place for governments to closely dictate what is offensive may no longer be needed. In today’s world, individuals turn to online channels to express their disdain for something they deem offensive or rally the masses to boycott a company and/or product. Could the same not work for trademarks? Sure, we can grant a person protection to their mark but it is only useful if individuals are willing to buy goods or services bearing that mark. As Moore J suggested, maybe it is time we re-examine the extent to which a government has the ability to refuse a mark and allow the citizens themselves to decide whether it is truly offensive.

Samantha Sim��is an��IPilogue Editor and��a graduate of Ryerson University's School of Journalism.

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The purpose of PIPA is to govern the means by which the private sector may handle personal information. as unconstitutional, the inaction of the Alberta provincial government following the decision made this juncture in privacy law particularly notable. Leading up to the November 15, 2014 deadline to amend the Act and account for its shortcomings, it was highly likely that Alberta’s private sector would revert to being governed by the Federal-level legislation, the Personal Information Protection and Electronics Documents Act (PIPEDA). Though PIPA and PIPEDA are substantially similar, there are two notable considerations that would have impacted Albertans had PIPA ceased to exist. First, the province would have had no mandatory breach notification laws, and second, the personal information of employees of provincially-regulated organizations in Alberta would have been statutorily unprotected.


PIPA violates s. 2(b) of the Charter

During a lawful strike that persisted for about ten months, members of the United Food and Commercial Workers Union, Local 401, videotaped and photographed individuals who crossed the picket line. In the area surrounding the picket line, the Union had placed signs that informed the public that images of persons crossing the picket line may be recorded and reproduced on the Union’s website, and in leaflets.

Several individuals who crossed the picket line and whose images were captured filed complaints with the Alberta Information and Privacy Commissioner, who in turn appointed an adjudicator to determine whether the Union had contravened PIPA. The complainants expressed concern that their personal information had been collected and disseminated by the Union without their consent in violation of the Act. When the Adjudicator found the Union’s collection, use and disclosure of information was not authorized under PIPA, the Union applied for judicial review of the legislation. On judicial review, PIPA was found to violate the Union’s rights under s. 2(b) of the Charter, and . The Court of Appeal declared PIPA unconstitutional as an infringement of the Union’s s. 2(b) right to freedom of expression.

When the matter was appealed to the Supreme Court of Canada, it was substantially dismissed by a unanimous Court. The Court held that personal information collected by the Union was done so in the climate of an open political demonstration where it was readily and publicly observable. Those who crossed the picket line had a reasonable expectation that their images could be captured and disseminated by others, such as journalists. The Court further found that the “personal information” collected, used, and disseminated by the Union was “limited to images of individuals crossing a picketline and did not include intimate biographical details”. Insofar as PIPA restricted the Union’s collection and disclosure of personal information for a legitimate labour relations issue, the Court held that the Act breached s. 2(b) of the Charter, and the infringement was not justified under s. 1.


The Government of Alberta’s inaction

Following the Supreme Court of Canada decision rendering PIPA invalid, the Government of Alberta had a 12-month deadline to bring the Act into compliance with the Charter. That quickly approaching deadline has been met with subsequent inaction by the government, though not due to delay on the part of the Privacy Commissioner of Alberta. On December 23, 2013, following the decision of the Supreme Court, the Alberta Commissioner . The proposed amendments bring the Act into compliance with the Charter, while preserving the balanced and principled basis of the Act. The letter was met with silence.

In mid-September, the until November 17, 2014, two days after amendments to PIPA must be passed.

On September 23, 2014, the Alberta Commissioner wrote . At that time, the Premier announced that he would be seeking an extension of the Declaration of Invalidity from the Supreme Court, and a motion requesting this was filed by the Attorney General of Alberta on October 1, 2014. Had the extension not been granted by the Supreme Court, Alberta would have reverted to being governed by the federal private sector privacy act, PIPEDA. In early November, the Supreme Court granted a six-month extension to bring PIPA in line with the Charter.


Bill 3: The Personal Information Protection Amendment Act, 2014

Following the extension, the Government of Alberta rapidly introduced a bill with proposed amendments to PIPA. The Bill prescribed a very narrow set of amendments that had been previously proposed by the province’s Information and Privacy Commissioner in December 2013. Under , a trade union (but no other organization) may collect, use, or disclose personal information about an individual without consent, for the purpose of informing or persuading the public about a matter of significant public interest or importance that relates to a labour dispute involving the union, provided that it is both reasonably necessary to collect, use or disclose personal information for that purpose, and reasonable to do so without consent for that purpose, taking into consideration all relevant circumstances, including the nature and sensitivity of the information.

The narrow amendments reflect the directive received by the Government of Alberta from the Supreme Court last year. Looking forward, it will be interesting to keep watch over how freedom of expression in matters of “significant public interest” in labour disputes are balanced against a consent in the use, collection and disclosure of personal information.


Faye Alipour is a JD Candidate at Osgoode Hall Law School and is enrolled in Osgoode's Intellectual Property Law & Technology Intensive Program.�� As part of the course requirements, students were asked to write a blog on a topic of their choice.

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Politicians and members of the political press galleries each play fundamental roles in Canadian democracy. Politicians are elected or appointed to serve on behalf of the electorate and craft laws and policies ��Meanwhile, as the stewards of the historic , the members of the press are entrusted to fulfill their to hold elected representatives and civil servants to account. Contestation often simmers beneath the surface if and when these respective mandates collide. However, each group is ostensibly supposed to serve the public good and the citizens of the state.

On 8 October, on the leak of an internal Cabinet document suggesting a . This document, reported to be a presentation from the Minister of Canadian Heritage and Official Languages Shelley Glover, sought Cabinet authority “to amend the Copyright Act to create an exception for the use of ‘news’ in political advertisements without the authorization of the rights holder” in order to provide “greater certainty for ‘political actors’ who want to use copyright content in their advertisements” (). This report caused a stir as opposition and Government MPs took their respective sides while members of the press used their positions to comment on the appropriateness of the proposed exception. �Ѳ������𲹲�’s Paul Wells nicely summarized the situation, asking .

During , the Hon. Ralph Goodale (MP, Wascana, Lib.) described the move as a “scheme authorizing the swiping of television news programs for use in political attack ads” (14:24) and “expropriation without compensation. [The proposal] degrades integrity and freedom of the press” (14:26). Minister Glover, meanwhile, responded by citing Canada’s fair dealing copyright exceptions and the “public interest in ensuring that politicians are accountable for their actions and accountable for what they say in public settings. Major television networks should not have the ability to censor what can and cannot be broadcast to Canadians” (14.26).

Minister Glover’s fair dealing assertion counters Mr. Goodale’s claims of “expropriation without compensation”. While the proposed exception would make it legal for “political actors” to use “news” footage or content without compensation or consent, these uses might already be protected under existing Canadian law. As I described in an earlier , the Supreme Court of Canada (SCC) has affirmed that fair dealing exceptions are (2004 SCC 13(3a) para.48). The measure of the phrase “integral part”, however, is not entirely clear.

Under the Copyright Act, Canada’s fair dealing exceptions are restricted to the purposes of (Copyright Act, R.S.C., 1985, c. C-42. Sec.29). The SCC has affirmed that these exceptions (2004 SCC 13(3a) para.51) and, it could be argued that the user generated content amendments and exceptions in the Copyright Modernization Act (S.C. 2012, c. 20) allow for the use of copyright materials for other purposes. To date, though, political uses of copyright-protected materials via fair dealing exceptions have not been fully tested.��Importantly, the SCC finds that “fair dealing” should not appropriate content in order to compete with the material interests of the rights holder: “if the reproduced work is likely to compete with the market of the original work, this may suggest that the dealing is not fair” (3(vi) para.59). Though this “is neither the only factor nor the most important factor that a court must consider in deciding if the dealing is fair”, the fact that the use of “news” materials in political advertisements is unlikely to compete with the work of the press in reporting and selling their content suggests that fair dealing exceptions would apply in such situations.

The Government’s proposal to amend the Copyright Act for political advertising generated criticism from members of the press, as reported by��. In his weekly for the CBC, Rick Mercer equated the move to “stealing” (0:59) and mistakenly said that “there are no exceptions” (1:15) for legally using copyright-protected content. Meanwhile, Don Martin, the host of CTV’s PowerPlay, ��“any government which asserts unlimited access to the airwaves for propaganda purposes is more than into chronic copyright infringement. In some academic opinion, that could be seen as flirting with fascism”. Other media organizations were more measured in their responses.��An points out that “media don’t like to see their footage and other copyright-protected content in partisan ads, especially the negative type, since viewers might be left with the impression that a media outlet is complicit with a political party”. The Globe’s concern is balanced by the recognition that “there will be people who see it as a boon for free expression. Why shouldn’t people make unfettered use of news images and clips of public figures in order to advance their points of view and denounce those of others? Isn’t the news a public good?”

In an , , Associate Professor of Law at McGill University and a founding member of the , welcomed the idea of an exception for political discourse on the grounds that it could help spur political debate. Professor Lametti, whose describes himself as an “Aspiring Liberal Candidate in LaSalle-Émard-Verdun”, stated that “political discourse is to be valued above all other kinds of discourse, and it's up to political parties to make their claims and they use whatever elements they can use legally. And if this helps to foster political debate in Canada, then that's good.”

While it may be aimed at protecting the “public good”, the ��does seem needlessly restrictive. By prioritizing “political actors” over members of the general public, the proposed course of action deprives the public of a useful tool for engaging in political debates. During the , MP Alexandrine Latendresse (Louis-Saint-Laurent, NDP) argued that the exceptions under question appear to be “legislation that is only in [the Government’s] interest” (14:52). In response, Minister Glover cited a post from the to defend the Government’s position (14:53).��A vocal and public commentator on Canadian copyright, Professor Geist applied the SCC’s reasoning to to argue that “copyright law should not be used to stifle legitimate speech …[and]… attempts to use copyright to claim absolute rights over the use of a portion of a video clip is surely counter to basic principles of fair dealing (in Canada) or fair use”.�� His reasoning goes further, however. In a – – Professor Geist echoes Ms. Latendresse’s concerns about the narrowness of the exception under consideration, arguing that “the creation of an exception that only allows a select few to benefit is not a provision that can be defended on freedom of political speech grounds”.

Attempts to update the Copyright Act’s fair dealing exceptions should keep public interest concerns in mind. A narrowly framed exception applying to only official “political actors” does not serve the best interest of all Canadians. It would be more beneficial to include “political speech” as a separate category alongside research, private study, education, parody or satire in order to better clarify how all Canadians can use copyrighted content to express their feelings about elected officials.

Thankfully, this debate seems to have cooled for now. As Professor Geist , the proposed exception was not part of the latest . With a legislated review of copyright law scheduled for 2017, it will be important to reaffirm that Canada’s copyright law and its fair dealing exceptions are designed to serve all members of the Canadian public— and not just politicians and/or the press.

Joseph F. Turcotte is an IPilogue Editor and a PhD Candidate in the Communication & Culture Program (Politics & Policy) at 91��ɫ.

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Appropriation of Name or Likeness

The couple argued that the defendants' use of their engagement photo constituted the tort of appropriation of name or likeness. To in such a claim, the plaintiffs must demonstrate that the defendants used the plaintiffs' names or likenesses, the use was for the defendant's own purposes or benefit, commercially or otherwise, and the plaintiffs suffered damages due to the defendant's actions. However, a claim of appropriation of name or likeness cannot succeed if the use in question is protected under the which states that "Congress shall make no law...abridging the freedom of speech." In , the Supreme Court of the United States held that the Free Speech Clause can be used as a defence in state tort claims.

Invoking the First Amendment: Noncommercial Purpose

A for invoking the First Amendment defence is that the message must have a noncommercial purpose. As the purpose of the First Amendment is disseminating information regarding matters of public concern, scholars argue that commercial messages should be given the least protection as they offer the lowest amount of information, in contrast to political, informational, and entertainment works [1].

Judge Daniel ruled that the defendants met this requirement as the purpose of their messages was to express disapproval of political candidates who support homosexual marriage. The Court disagreed with the plaintiffs' argument that messages which solicit donations (as in this case) are automatically commercial. In , the Court held that a political message may be noncommercial even if it has "commercial undertones". What is necessary is that the donations are not a prerequisite for viewing the message. As these criteria are satisfied, the defendants are eligible for protection under the First Amendment.

In my opinion, the emphasis on the commercial or noncommercial nature of the message when invoking a defence under the First Amendment shows how little the plaintiff's personal losses factor into the equation. Although the definition for the tort of appropriation of likeness states that the benefit derived by the defendants can be commercial or otherwise, it seems that the focus is largely on commercial gain. The damages suffered by the plaintiffs are more easily proven if they experienced economic loss (compared to emotional harm) and a defence under the First Amendment would not be available to the defendants.

Invoking the First Amendment: Newsworthy or Legitimate Public Concern

A����when arguing a First Amendment defence is that the use must reasonably relate to a publication concerning a matter that is newsworthy or of legitimate public concern. The defendants' argument was successful as their use of the photos was to address a legitimate public concern. Judge Daniel citing , stated that the issue of same-sex marriage is a legitimate public concern and is widely discussed in the media.

The First Amendment gives the greatest protection to newsworthy content because it promotes a "free marketplace of ideas", which is necessary for public debate, clarity of thought and informed decision making [2]. The public should have access to all relevant information, not just the selective content offered by the government.

Fair Use Argument

Although the plaintiffs lost their case, they did succeed in proving that the defendant's use of the photo was not protected under the fair use exception. In fact, the Court found that the defendant failed to meet many of the criteria required for establishing fair use as listed in (Limitations on exclusive rights: fair use). Most interestingly, the Court ruled against the defendant's argument that by using only 20% of the original photo, they had not taken a substantial portion of the content from the original work. The Court stated that "the quantity of a taking does not necessarily determine the quality of the taking". Since the portion that was taken was the focus of the photo and contains significant creative content from the photographer, the taking was still substantial.

The defendant's success in this case, despite the Court ruling against their fair use argument, demonstrates to me the minor role that fair use plays in the conflict between appropriation of name or likeness and freedom of speech.

Conclusion

In my opinion, this case marks a win for the press and anyone who seeks to use private individuals' information to promote a newsworthy message, and a loss for privacy and individual rights. Until the Courts come up with a new precedent, I think users would be wise to refrain from putting anything in the public domain they do not want to see featured in the next political ad campaign.

[1] Roberta Rosenthal Kwall, "Right of Publicity vs the First Amendment: A Property and Liability Rule Analysis" (1995) 70 Ind LJ 52 at 63.

[2] Supra, note 2 at 63.

Sabrina Ding is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.

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