The reporter’s privilege of protecting the identity of his sources, takes origin from the need to preserve the bases of a democratic society. Protection of journalistic sources is strictly connected with a variety of fundamental rights, and has always been a sensitive topic.

As easily imaginable, freedom of information covers – almost in each democratic country – every journalistic activity, and in different ways grants them the privilege of not disclose the source’s name.

Generally speaking freedom of information matches with freedom to be informed, every citizen has to be informed and be aware in order to be conscious within is political participation.

Beside the potential danger for the physical safety of the source, it is on the stand the reputation and the trustiness of the journalist as an individual and as a category: if journalists have to disclose names of the sources – without any kind of control by the authorities – no one will reveal sensible information ever again.

The need of anonymity of the sources could be in contrast with some other necessities or rights, even protected by constitutions, such as the administration of justice: in those cases a balance of principles shall be applied.

The problem of the disclosure of the source usually arises within criminal proceedings, when the authorities issue a subpoena against journalist if they have the need of proceeding against the source or questioning him/her. Sources can be members of the police – that if caught revealing information could be prosecuted – or criminals or whistleblowers, at risk too.

In those situations courts shall balance the principles of freedom of information and independence of the press with the right of seeking for justice.

The analysis of the work has been conduct in a comparative perspective, addressing three different main jurisdiction: Italy, European Union (with a focus on the UK) and United States, in order to compare perspectives regarding civil law, supranational and common law systems.

In the last years the discipline of protection of the sources has been involved in some important technological changes (like whistleblowing platforms – one for all WikiLeaks), and laws has been founded completely unprepared. As a reaction Courts had to intervene and find ways to adapt provision to technological developments. Soft laws, guidelines from departments of justice, give some help in addressing the framework – but not enough – in particular regarding new technologies challenges.

The analysis of the discipline shall start from the legal sources in each jurisdiction.

In Europe, Article 10 of the European Convention of Human Rights states: “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless frontiers”. Starting from Article 10, European institutions have issued several provision regarding journalism and media outlet, but on the matter of protection of journalistic sources the only acts enacted were soft laws: mostly recommendations of the Council of Europe.

The European Court of Human Rights has always given protection to journalists, with the intent of making the press the ‘public watchdog’ of democracy in Europe. One of the principal ways to freely exchange information and ideas in a democratic society is through an independent and without censorship press, especially in a multinational scenario.

The European Court of Human Rights had a main role in drawing up a discipline for reporter’s privilege of not disclosing the source. The first time was with the leading decision Goodwin v. the United Kingdom, where the Court had to decide whether the order of disclosure of the identity of a source by British authorities was an interference prescribed by law or – most importantly – necessary in a democratic society.

Regarding Article 10 of the Convention and protection of the sources, the Court was vital in the creation of solid standards and requirements to apply the privilege and to condemn national courts that forced the journalists when the prerequisites were not respect – according to national provisions and European standards.

The Italian framework proved himself as the most structured: starting from Article 21 (and in same case with a connection with Article 15) of the Italian Constitution. Article 21 states: “Anyone has the right to freely express their thoughts in speech, writing, or any other form of communication. The press may not be subjected to any authorization or censorship. Seizure may be permitted only by judicial order stating the reason and only for offences expressly determined by the law on the press or in case of violation of the obligation to identify the persons responsible for such offences.”

Already in the Constitution there is an explicit protection for the press, freedom of the press is settled and the “passive” profile of freedom of information has been granted by several decision of the Constitutional Court.

Article 622 of the Criminal Code deals with the Revelation of professional secrecy “Anyone having information, for reason of their status or office, or of his profession or art, revealed a secret, without just cause, or uses it in their own or another’s profit, is punished, if harm can result from the fact, with imprisonment up to one year or a fine from euro 30 to euro 516.”

The purpose of article 622 of the Criminal Code is to safeguard the freedom and security of private professional relations. A surprising aspect of Article 622 is the broad definition of the term “profession”, which includes every kind of service, art, office or public activity – but with secret of private nature – and every professional standing, as well as trainee and practitioners. Is considered really outstanding the inclusion of trainee in the definition, operated by the Constitutional Court, because in Article 200, par. 3 of the Code of Criminal Procedure the professional privilege for journalist is limited only to members of the Professional Association.

Article 200, par. 3 of the Code of Criminal Procedure – the reporter’s privilege – was added with the last reform of the code in 1988, after years of debates on the lack of a discipline on journalists called as witnesses and forced to disclose sources under threats of criminal charges (as happened to Oriana Fallaci when she wrote a story on the investigations around the death of Pasolini).

The text of the article: “(…) The provision referred to in paragraphs 1 and 2[1] shall apply to professional journalists registered in their professional association, exclusively to the names of the persons from whom they obtain confidential information while practicing their profession. If the information is essential to prove that the offence being prosecuted has been committed and its truthfulness may be ascertained only by identifying the source of the information, the judge shall order that the journalist specify its source.”

The order of disclosure of the identity of the source could be given only by a judge and not from a public prosecutor and with two requirements:

- the disclosure of the source is extremely necessary in order to the proof of the crime, in reference with specifics facts considered by the public prosecutor;

- the information needed shall be obtained merely with the disclosure.

The article provide strict requirements in order to protect the importance of the confidentiality, the source must be the last investigative option.

Another justification for the disclosure order from the judge could be the necessity to discover if the journalist is pretending to have a confidential source, but he made up himself the information. In such case he will incur in criminal liability under article 595 of the Criminal Code: defamation.

The main issues regarding reporter’s privilege in Italy have been raised in the last decade: seizures of informatics materials. Seizing incredible amounts of informatics materials at once to journalists, make available to the authority all the information about the confidential sources. This leads to incredible threats to the reputation and reliability of the journalist, to freedom of information and even to the safety of the source.

In the U.S. the discipline of the reporters’ privilege has been left to the independence of the states, until now there is still no federal shield law.

The First Amendment to the U.S. Constitution states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the government for a redress of grievance.” An endless debate has involved a conceivable protection of journalistic sources by the first amendment, but the only Supreme Court decision, which address the theme, officially denied it.

In 1972, with Branzburg v. Hayes case, the Supreme Court denied the existence of a constitution reporters’ privilege under the First Amendment, but the concurrent and dissenting opinions of this decision complicated the framework and inspired several lower courts judgements on granting the privilege.

Most of the state whose last instance courts do not recognize the right under the First Amendment afford journalists almost the same protections under state shield laws, and some states grant protections under both.

At the state level, three different means of recognition of the privilege are granted: through a state law, on a common law basis and courts can create their own rules of procedure. Some states chose to introduce directly constitutional provisions as shield laws, or statutory shield laws or to leave the regulation of the reporters’ privilege to Courts – e.g. Virginia – under First Amendment protection or common law case-law.

The comparative analysis has showed that the discipline of the protection of the sources has as a main issue the uncertainty, due to an endless need to balance principle on a case-by-case base.

In the majority of jurisdictions, for a journalist in order to be protected under statutory law – for his activity of gathering and publishing information – is essential to be considered a professional. In those jurisdictions where the professionalism is not mandatory, we can find other requirements established – almost always – by the jurisprudence. The main issue has always been the constant evolution of the figure of journalists, and still now is keeping changing.

Especially in Italy, the contradictions around journalists are several. Article 622 of the Criminal Code has a broad definition of professional, and the same for law n. 69/1963 (law on the press and on the Professional Association). On the contrary Article 200 of the Code of Criminal Procedure grants the reporters’ privilege only for professional journalists, enrolled in the Professional Association. Publicists and all the “borderline” figures remain out of the protection, but can be prosecuted in other ways: evident contradiction.

How can this contradiction be solved? The legislator – in the context of a more broad reform of journalist – shall modify article 200 making it more broad, taking out the profession prerequisite and adapting to the code of conduct of journalist and to all the already existing European provision and standards.

WikiLeaks and new technologies have changed the discipline, to the extent that the entities involved are three and not two anymore: journalist and source plus an intermediary. How can laws and courts deal with this transformation? A solution hasn’t been found yet, the debate is still open and a one certainty remains: technology as an asset and a threat for journalists was WikiLeaks’ greatest teaching.

The security of journalists and their sources even in the most democratic countries shall be a priority, and their safety in some cases depends on how their communication and the information that they gathered are addressed.

In a recent interview to the Guardian, Edward Snowden has advised journalists to be very careful, to start to use technologies as assets for their profession. He claims that is not safe to make even the first contact with a source through “traditional” communication channels, and then pass to encryption: only from that first contact authorities can track down the source. He continues saying that also on the way to meet the source a journalist shall not use any electronic means, computer, mobile phone or credit cards: everything is traceable now.

In order to face this challenge, some majors freedom of the press associations are conducting researches, studies and making some efforts, especially developing whistleblowing platforms in the form of free downloadable software.

Interceptions and seizures of communications between journalists and their sources have become a real global threat for freedom of expression. In the next future probably whistleblowing platforms will be at risk too, but nowadays they seem the only safe harbor for confidential sources.

[1] “Persons shall not be obliged to testify on what they know on account of their function, service or profession, without prejudice to the cases wherein they must report these facts to the judicial authority:”

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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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We have a wonderful array of��,��from government agencies to media organizations, hi-tech companies, and innovation centres. For the Fall 2013 term, we have partnered with three brand new placement organizations: Apotex, Cobalt Pharmaceuticals Company (the Canadian subsidy of Actavis, Inc.) and CBC/Radio-Canada. We are also pleased to welcome the return of TVO from our inaugural year. Other IP intensive placement organizations include: Canadian Heritage, the Canadian Intellectual Property Office, Industry Canada (Copyright and International IP Policy Branch), the Society of Composers, Authors and Music Publishers of Canada (SOCAN), Stanford Centre for Legal Informatics (CodeX), The Globe and Mail, and VentureLAB.

The IP Intensive is a unique program that gives students practical, experiential education in a workplace setting for an entire term in lieu of being in the classroom.��Our students gain valuable practical experience which will assist them in obtaining employment after law school, and some of our students' research in the program has been published in the (IPJ).

The IP Intensive begins with��, led by IP Intensive Students currently enrolled in the IP Intensive, which will feature presentations and workshops by experts prominent in the IP community. The seminars will cover a wide variety of topics, from “Trade-mark Prosecution” to “Intellectual Property Reform Process”, from “Biotechnology Focus: Pharma” to “Digital Media, Journalism, Freedom of Expression”. ��Our IP Intensive students will be interacting and engaging in stimulating discussions with the Chair of the Trade-marks Opposition Board, a senior policy analyst from Canadian Heritage (Copyright Policy Branch), counsel from the Ontario Information and Privacy Commissioner’s Office, in-house counsel and top executives from a broad range of industries, practitioners from the major Canadian law firms, academics and members of the judiciary.��Then IP Intensive Student Interns will participate in an 11-week internship with one of our placement partners.

The program director for 2013 will be Professor David Vaver. Throughout the term, the students will be meeting with him periodically to discuss topics relating to intellectual property law, to share their experiences in the work environment, and to participate in a cross-pollination of ideas. The students will also be maintaining a reflective journal and blog on the . They are also responsible to lead their own seminar presentations, which will occupy the wrap-up week of the course.

If you are interested in attending any of our sessions or participating as a placement, please do not hesitate to get in touch with me directly.

Giuseppina D’Agostino is the Founder and Director of IP Osgoode, an Associate Professor at Osgoode Hall Law School, and the Founder of the IP Intensive.

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While criminal sanctions will only apply to specific types of plagiarism, Justice Secretary Leila de Lima that��plagiarism in the form of online piracy of copyrighted material is tantamount to copyright infringement.��The Act has been widely by various parties () as unconstitutional and , with particular concerns over the vagueness of the statutory definition of “libel.” In an , de Lima seems to have downplayed the constitutional issues that the Act poses, indicating that the public should simply avoid plagiarism through proper attribution, noting that the criminal offence requires deliberate intent. However, in a legal system, where stare decisis is , the legislature has an increased responsibility to be explicit in their intentions so that the laws can be properly implemented.

By issuing an advisory, the Philippine Department of Justice (DOJ) intended to increase public awareness and dialogue regarding plagiarism and copyright infringement issues, but in the process, it may have confused the subject even more. By explicitly linking copyright to criminal law, the DOJ statement may have had a chilling effect on the creation of new copyrightable materials, as creators will be wary of potential criminal sanctions. Without proper contextualization, the already are impossible to delineate with respect to the state of the law. It is clear that purposive analyses are vital to establish such lines, but the effect could be calamitous for the “guinea pigs” of the legislation.

It has been widely contented that the , and sources such as , in combination with a lack of proper accreditation and citation education, are responsible for a rise in plagiarism. While this may be, it is also quite likely that the Internet age has , and in part has dictated the necessity for these new cyber-laws to combat web-based issues. However, as I have , advances in technology pose new challenges to the State to ensure that responsible government is in place to uphold the constitutional rights of citizens. The modern age has become something of an information overload, and great care must be taken by governments to ensure that information, particularly information used in criminal proceedings, is obtained legitimately and in line with human rights. Western courts have taken a relatively liberal approach in balancing the rights of states and citizens, and indicate that privacy interests of citizens are of paramount concern – but are limited within ‘reasonable’ parameters.

Laws are generally reflective of social values, and intellectual property laws are no exception. In an , Bill C-11 (Copyright Modernization Act) was assessed in view of social norms, and the author indicated that when laws are in accordance with social values, it is more likely that citizens will follow them. This is a difficult notion to disagree with, especially when the laws are written with clear intention and purpose with respect to what the State expects its citizens. Indeed, plagiarism is noted as an offence of integrity that is particularly socially based in public adherence due to the implications that can result from being caught in the act. Frequently, plagiarists are subject to , and end up self-sabotaging. However, in an ironic twist, Philippine Senator Vicente “Tito” Sotto III, the for inserting the controversial criminal libel clause into the Cybercrime Prevention Act has been under fire for . Unfortunately for Philippine citizens, at least in the interim, this seems to have an element of quis custodiet ipsos custodes, who watches the watchers?

The answer may be in part, the Supreme Court. With respect to this Act, it seems that the uprising of the citizens, through numerous petitions and dialogue, has served to ensure that the proper checks and balances are in place. Irrespective of opinions about the purposes of the legislation, be it to purify the reputations of legislators or to legitimately protect intellectual property interests of citizens, it is essential that the balance of interests be considered, as with any law. The Supreme Court of the Philippines will begin to of the Act and how to approach the petitions on October 9, 2012.

UPDATE: On October 9, 2012, the implementation of the legislation was ��pending deliberation of the Supreme Court. Nobody has been charged yet under the Act, and it seems that the of Philippine citizens and have at least affected another review of the legislation, which was widely criticized as overbroad and unconstitutional. The Court will hear oral arguments from all of the 15 petitioners questioning the constitutionality of the legislation, as well as the government as a responding party. The DOJ has responded by promoting discussion among all sectors of government and with civil rights groups concerned about the effects of the legislation. Following oral arguments, the Supreme Court will rule on the merits, which will dictate the ultimate fate of the legislation. The against the law will expire in 120 days.

Ryan Heighton is a JD candidate at Osgoode Hall Law School.

The post The “Word” Is Not Enough: New Cybercrime Prevention Act Leaves Philippine Plagiarists Criminally Vulnerable (UPDATED) appeared first on IPOsgoode.

Mulcaire had been attempting to shield himself under the privilege against self-incrimination in civil proceedings centering on the alleged interception of phone messages. Mulcaire’s argument was that the information involved did not constitute intellectual property. However, it was held that����applied to this action, which constituted an intellectual property dispute, negating Mulcaire’s privilege from self-incrimination.

The phone hacking scandal was initially exposed in 2005 when����that a private business discussion was printed in the News of the World. The intricacies of how his private phone messages were hacked, and the ensuing police investigation was explored in a . Mulcaire and former News of the World royal editor Clive Goodman were����for conspiracy to intercept communications without lawful authority (contrary to the��). However, years later, it became clear throughout an onslaught of civil litigation that the scope of the scandal within the corporation’s ranks went far beyond Mulcaire and Goodman and their illegal interception of information from the royal family. In July 2012, it was disclosed that����were victims of the phone hacking scandal, with����in conjunction with the scandal.

The����in the ongoing legal battle against Mulcaire will have wide implications for both the ongoing civil and criminal litigation surrounding the scandal, as well as the rights of respondents in future intellectual property litigation. It is dictated in����that the privilege against self-incrimination is withdrawn in “proceedings for infringement of rights pertaining to any intellectual property or for passing off”, which left the courts to establish the breadth of the definition of intellectual property in the context of this statute. Intellectual property is defined in����as “[meaning] means any patent, trade mark, copyright [design right], registered design,��technical or commercial information��or other intellectual property.” The primary issue in this matter was whether the intercepted information constituted intellectual property, which would withdraw Mulcaire’s privilege.

The claimant, Nicola Phillips, held that the intercepted messages contained����about her clients, which she contended would place the litigation in the realm of s. 72 under the technical/commercial definition of IP. Mulcaire argued that the phrase “technical or commercial information” was limited by the text “other intellectual property”, seeking to narrowly apply the term to pre-determined forms of IP. However, the Court held that IP is a broad term that is not restricted to conventional application, including the confidential commercial information that was contained in Phillips’ phone messages, even though they contained a personal component. A key distinguishing feature of this interpretation is that solely personal information is not included in the IP heading, unless there is a clear commercial component. This commercial component is exclusive of the ability to turn the information to financial advantage by disclosure to the media. In the present matter, the nature of the information in Phillips’ messages was of a sensitive business nature, and included information about clients’ finances, security issues, and business transactions. In view of the Court’s interpretation of “technical or commercial information”, it clearly fell under the heading, leaving Mulcaire unprotected by the privilege of self-incrimination.

This ruling will undoubtedly influence the����resulting from the scandal, and seems to have already influenced the criminal repercussions of the scandal. Although the police have not stated explicitly that it was Mulcaire's disclosure that led to further charges being laid,����to the police, Mulcaire and seven others, including Prime Minister Cameron's former director of communications Andy Coulson, were����in relation to the scandal. The group����in September 2012. These charges also indicate that the UK police may seek disclosure of evidence in civil proceedings that may be relevant to ongoing investigations. Professionals in field of private investigation will also likely feel the impact of this case, as the ruling will likely be interpreted as a check to the legality of their actions, especially when under the employment of ‘unsavoury’ clients. Finally and perhaps most importantly, it applies a clear and broad interpretation to the statutory definition of IP, updating the definition to include modern forms of communication that have become staples in the business world.

Ryan Heighton is a JD candidate at Osgoode Hall Law School.

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Explicit Materials, Privacy Rights, and Freedom of Speech

One of the first issues to erupt from the pursuit of Magnotta surrounded the alleged snuff video of the murder being committed, which Magnotta was purported to have posted on a notorious “gore” website. Canadian Public Safety Minister Vic Toews, the champion for Bill C-30 (which has been challenged as of Canadians), has as an example of why Internet surveillance is an essential step in modernizing the Criminal Code to catch up with the digital age. However, my opinion is that there is a fundamental flaw in Mr. Toews’ logic. This flaw is that increased Internet surveillance would not have made any difference in this matter. The video was posted publicly, and both Canadian and American law enforcement agencies appear to have ignored tips regarding its existence.

It seems that the problem is not about individuals being afforded too much privacy, but perhaps that the desensitization induced by the Internet and free-sharing of information has stunted the reaction time of law enforcement. The general public has become accustomed to viewing shocking videos and information all the time, and the advent of modern horror movies has blurred fiction and reality. This brings issues of what is considered obscene material, and particularly, how are we to decipher real violence from twisted fantasy? Irrespective, there between encroaching on Internet privacy and effective law enforcement.

Beyond the issues of the reality of the gore video, it has been argued that the video served the ultimate utilitarian purpose of leading to the early identification of Magnotta as a suspect. Indeed, the host of the gore website has been of his website’s explicit material for this reason. While individuals are generally free to post their own videos at their liberty in various forums online, this video was a depiction of a glorified and sexually explicit murder. There are significant to consider when assessing the liberty that should be attributed with respect to obscene content. Moreover, the victim was certainly unable to consent to being featured in the video, and for a website to benefit from such an egregious act is in stark contrast to the protection against exploitation and degradation that is afforded by Canadian obscenity laws. This case may result in a very interesting fight between��freedom of expression rights (on a “public good” basis of honest reporting) and obscenity laws that

Labatt’s Attempted Brand Management

In addition to being and distasteful in the wake of a tragic murder, Labatt Breweries of Canada’s threat to pursue litigation against the Montreal Gazette for publishing an image of Magnotta holding a bottle of Labatt Blue poses a problem with respect to the perception of criminal law. It is a Canadian constitutional right that individuals charged with crimes are beyond a reasonable doubt. Despite the mass media frenzy against Magnotta, and the seemingly damning video evidence (discussed above), he is not yet a convicted killer. In my opinion, Labatt's outrageous��reaction��to a photo in an article, which made no direct mention of their brand, was tantamount to presuming Magnotta to being guilty of the alleged crimes before even being arraigned. To defend these actions as defensive of their brand, under the presumption that a photo of their product in the hand of a suspected killer will create negative associations with the brand, is insulting to the intelligence and discretion of the general public. I think that claiming brand protection for such a benign usage of a widely disseminated photo, originally published on Facebook by Magnotta himself, is unnecessarily litigious and an abuse of the legal process.

Similar issues of brand denigration through usage of trademarks have been with respect to Google’s AdWords system, which utilized trademarked names to generate Google’s “sponsored links” in search results. on the primary basis that companies possessing trademarks could suffer lost profit and reputation based on the advertising potential for counterfeit sites. The held in the joined suits that general Internet consumers are sufficiently aware and intelligent enough to understand the proper usage of trademarks. Thus, Google could not be held responsible for trademark infringement by third parties. As a result,��Labatt would not likely have a reasonable cause of action in response to the newspaper displaying a trademark in an image pertaining to something completely unrelated to the brand. Moreover, it is likely that Labatt would have to provide evidence that the display of their product in the image within the article caused actual loss, which would be quite difficult, particularly without causing harm to their own brand.

Indeed, despite in the end, it appears as though Labatt’s attempts to protect the integrity of their brand backfired, in what has been dubbed the Rather than mitigating any potential damage to the Labatt brand that the photo was expected to cause, Labatt inadvertently denigrated their own brand, with Twitter users making a game of poking fun at Labatt’s perceived paranoia. The missteps by the Labatt legal team in managing the company’s trademark were summed up in the wake of the Twitter-bashing by one :

“The sad thing about the ��is that the Legal team likely caused the mess and now the PR team will have to clean it up.”

This indicates the legal profession’s difficulties in keeping up with the digital age, and the widespread dissemination of information through social media. As legal professionals, it is essential to be cognizant of the digital repercussions of all actions, particularly with respect to high profile matters, as the reaction of the general public is now significantly amplified to the days before the predominance of social media. The photo in question originated in social media, and the actions of the Labatt legal team were exacerbated through social media. Law is not practiced in a vacuum. Gone are the days of a lawyer sending a threatening letter to indirectly obtain an injunction without litigation or widespread backlash. IP and corporate lawyers��should take note:��their actions��may be scorned (and quickly) if they are perceived by the public as unjust or ridiculous.

It is evident that the advent of technology, including Google, Twitter, and Facebook, has profoundly influenced the dissemination of news, as media outlets have innumerable instantaneous options to distribute information. These matters become more complex from a procedural standpoint in criminal law when potential criminal evidence is involved, as it is more difficult to control sensitive information. Moreover, the internet influences the law��in unexpected ways, and in view of the situations discussed here, it is evident that the legal system, including its professionals, need to catch up with technology.

Ryan Heighton is a JD Candidate at Osgoode Hall Law School.

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I’m here to talk about the evolution of journalism and effects of digital media on freedom of expression. While this is most obvious in the international context, the legal framework in Canada is not immune from the influences of social media and citizen journalism and the new landscape is changing the way our courts view the law.

International Context

I thought I’d start out with some recent international headlines:

• Masked men break hands of critical Syrian cartoonist.
• Omani judiciary attempts to silence newspaper before trial.
• Body of abducted journalist found in Mexico.
• Six Libyan journalists still missing.
• Philippine radio commentator fatally shot.
• Chinese journalists punished for citing historian.
• Pakistan news crew attacked at midday in central Peshawar.

These are just a few of the headlines recently published on the , a non-profit organization that promotes press freedoms. The headlines are shocking and portray the dangers faced by all journalists – whether on assignment from organized news media or citizens who choose to bear witness to current events -- and in particular those covering uprisings, combat, violence and war. According to the CPJ, as of August 26^th, 871 journalists have been killed since 1992, and 649 are in exile worldwide.

These headlines appear to refer to the established media. However, increasingly, digital media has made reporting a function of the people – relatively cheap technology such as smart-phones facilitates almost instantaneous sharing of the events around us, allowing the world to see, hear and experience what is happening in other corners of the globe, whether remote or just next door. The possibilities opened by technology and ensuing digital media are historically unprecedented and have changed the way the world sees itself – an exciting prospect for many.

It is also a terrifying prospect for others who wish to silence dissent. There are many examples, and one in particular stands out to me.�� In June 2009, hundreds of thousands of people took to the streets of Tehran in protest against Mahmoud Ahmadinejad’s landslide election victory, which was widely viewed as fraudulent. The government responded by ordering journalists not to report from the streets and revoking press credentials for foreign journalists. This attempt at censorship was thwarted on a massive scale when the shooting of 26 year old Neda Agha-Soltan was captured on video and transmitted over the internet, bringing the severity of Iran’s political turmoil to the world and prompting widespread reporting and commentary internationally.

The Canadian Context

Canada (as opposed to the countries that made the CPJ headlines) takes freedom of expression very seriously.�� We are a lawful nation and do not suffer from overt censorship or endemic violence against our journalists, although I sometimes worry about the journalists The Globe and Mail has in other parts of the world reporting for us.�� Indeed, it has been reported that since June 2009, Canada has granted political asylum to Ms. Agha-Soltan’s fiancé, himself a journalist who has said he was arrested and tortured in Iran in the aftermath of her killing.

That said, in recent years, there have been no fewer than ten cases involving press freedoms heard by the Supreme Court of Canada, covering the areas of defamation, protection of sources, publication bans, freedom of information, election laws and access to courts. Cases that reach the Supreme Court of Canada are by their very nature controversial and precedent-setting. There are many, many more cases heard by the lower courts, often brought by media outlets in an attempt to enforce the settled law pertaining to freedom of expression rights.

While we are fortunate in Canada to have recourse to the courts to fight the battles for freedom of expression, the volume of cases that have escalated to the highest courts of the land are emblematic of the continual challenges the media face.�� It is the defence and advancement of the media’s right to publish and disseminate important information of public interest that forms the backbone of the work I do at The Globe and Mail.

Before we dive in to the Canadian context, I’d like to take a step back and review the international legal precedent for freedom of expression, because it came first.

Freedom of Expression

Freedom of expression is an ancient concept and has been recognized in various forms by many civilizations, including the ancient Greeks and Romans, as central to democratic ideology. Over the centuries, it has made an appearance in England’s 1689 Bill of Rights and France’s 1789 Declaration of the Rights of Man and of the Citizen. It forms the core of the First Amendment to the US Constitution, adopted in 1791.

In more recent history, freedom of expression has been enshrined as a human right under the .�� The Declaration was adopted by the United Nations General Assembly in 1948 in response to the atrocities of the Second World War. Article 19 states:

Everyone has the right to freedom of opinion and expression; this right includes the freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

This commitment was translated into international law in 1976, with similar language included in the International Covenant on Civil and Political Rights.

Many countries have recognized these obligations in domestic law, and Canada is no exception.�� Freedom of speech and freedom of the press have been specifically protected in the since 1960.�� The current legislative framework for freedom of expression is found in , which came into force in 1982.�� It states:

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
2. Everyone has the following fundamental freedoms: … (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.

We will see in a moment how relevant this last part of the Section 2(b) expression rights has become.

It is important to recognize that freedom of expression is invariably subject to certain laws.�� In Canada, the media are governed by laws of general application to the Canadian populace, including laws against hate speech, libel and slander laws, freedom of information laws, election reporting laws, and criminal and civil contempt laws pertaining to the identification of certain victims of crime, young offenders, and information that could prejudice a person’s right to a fair trial.

Many media cases are grounded in the interpretation of what these laws mean in a particular set of circumstances, or in the times in which we live, and how they intersect with Charter rights.

Several of Canada’s Supreme Court decisions grapple with the role of social media, and citizen journalism, as well as the ramifications of widespread instantaneous reporting due to digital transmission technology.�� I will share just a few examples.

Responsible Communication

In the 2009 case ., the media successfully argued for the right to publish stories in the public interest, even if they were found to be defamatory, if the publisher acted responsibly and took appropriate steps having regard to public interest in reporting the story and the reputations at stake.�� Factors to be considered include, among others, the seriousness of the allegations, the public importance and urgency in reporting the story, the reliability of the source and whether the plaintiff’s side of the story was sought.

This defence is new and has yet to be developed in Canada.�� It has the great potential to reduce libel chill in Canada by allowing stories that are in the public interest to be told that would otherwise have been shelved because the story just could not be proven – for example, because the target of the story was very litigious and refused to be interviewed or comment on allegations.

Grant was a landmark victory for the established media, which had been arguing that there should be a “responsible journalism” defence for years. However, it is noteworthy that the Court decided to call this new defence the “responsible communication” defence rather than the responsible journalism defence, acknowledging the difficulty in determining in the age of social media and citizen journalism of determining who exactly is a journalist. As a law of general application, it applies to everyone seeking to communicate stories in the public interest, whether in a national newspaper, on Twitter, or in a blog.

Source Privilege

The question of who is a journalist also influenced the Supreme Court in a pair of cases decided in 2010, setting out the law on protection of journalist’s sources. In both and the central issue was the right of a journalist to keep confidential the source of a story.�� In both cases the public interest in the stories were not really at issue�� – in National Post the story implicated then-prime minister Jean Chretien in a conflict of interest regarding a bank loan.�� The Globe and Mail stories broke the Liberal government’s sponsorship scandal in Quebec.

The Court in National Post declined to provide special constitutional protection to��news gathering��techniques – contrary to the arguments made by the media, who were seeking to have��news gathering��techniques recognized as a S.2(b) right.

In this case, the document at issue was generally accepted to be a forgery.�� The Court had difficulty in giving protection to a source who may be a suspect in a crime and allowing the media to suppress physical evidence central to a criminal investigation.

While the police had the sympathies of the Court, the case dealt a major blow to the media.�� Many stories are heavily reliant on information that is brought forward by insiders and whistleblowers, and an inability to protect sources may cause those who would otherwise have come forward to self censor.

The Court had already determined that protection of sources as part of the��news gathering��process was not automatic when it heard The Globe and Mail case.�� However, the facts were very different in this case, which was about a whistleblower who had crucial information about the mishandling of federal sponsorship funds and whose information led to a national inquiry into the sponsorship scandal that toppled the government of the day.

The Court clarified that in some circumstances sources may be protected, and set out the national test for determining the parameters of the protection of the source-journalist communication:�� the communication was made explicitly in exchange for a promise of confidentiality; the confidentiality was a pre-condition to the disclosure; the relationship between the journalist and the source was diligently, deliberately and consciously fostered in the public good; and the public interest served by protecting the identity of the source outweighs the public interest in getting the truth.

More importantly for The Globe and Mail, the Court overturned the lower courts’ requirement that our journalist, Daniel Leblanc, divulge his source, instead sending the case back to the judge who made the initial ruling with instructions to revisit the facts in light of the clarified test.

Had the Court declined to hear the appeal, or to overturn the lower courts, both Daniel Leblanc and The Globe could have faced severe sanctions for a refusal to identify the source code-named Ma Chouette. As an aside, Daniel had an incredible social media following of his own with respect to this case, especially on Facebook.

The Court was reluctant to give blanket, or class, privilege to journalists for��news gathering��techniques in a world of low barriers to publishing information. The Court stated that there could be no class based privilege “on the basis that there is no formal accreditation or licensing process for journalists in place, as there is for lawyers for example, and no professional organization regulates the profession and maintains professional standards.” While this statement could be viewed as a call for accreditation (and perhaps has been -- more on that in a moment), it reflects the struggle the Courts have with the new world of journalism opened up by the advent of digital media.

Other Examples of News Gathering

The Supreme Court’s 2010 decision denying constitutional protection for access to information () mirrors the results of the source cases.�� Access requests for information are fundamental to the��news gathering��process and necessary for the publication of many stories that are in the public interest, including those that shine a light on our largest public institutions.�� The Toronto Star’s allegations of racial profiling by Toronto Police, published in 2002, is one example of a story that could not have been published without a successful access to information request.

The experience of the media with access to information requests is often difficult, time-consuming, and costly. Requests sometimes take a long time to process, or are subject to redactions that render the documents indecipherable. It often takes court challenges to successfully unseal documents we believe should have been accessible under the existing law.

A similar pattern exists with respect to access to exhibits in public proceedings. Most recently, journalists have had difficulty in gaining access to exhibits in the Ashley Smith inquiry. As you may know, Ashley Smith was the young woman who died in custody, while the guards looked on without intervening. The coroner’s inquest is public, and the family has indicated a willingness to share her story. It is the coroner’s office that has stymied efforts to review exhibits filed in the inquiry.

These are examples of more typical Canadian incursions on freedoms of the press and freedom of expression. They can lead to censorship – self-imposed in the case of sources that don’t speak up, and state-imposed if access to information requests, or court exhibits, are unreasonably denied or delayed.

Open Courts

While Canada has very robust and settled law setting out open courts principles, the reality for the journalists attempting to cover the courts can be less than ideal. Limits on coverage of court proceedings are entirely justifiable in some circumstances (and generally enshrined in the criminal law) – for example, the media do not quibble with rules against publishing names of victims of sexual assault who do not want to be identified, or the names of young offenders. There are good reasons to give some people their privacy.

In addition to publication bans mandated by statute, parties to litigation may apply to a judge for a publication ban of their proceedings.�� Unfortunately, experience has shown that journalists often do not get advance notice of these publication bans requested in civil cases, and can be limited in how they get to report from court – an example being the reluctance in Canada to allow cameras in the courtrooms.

All these challenges are difficult enough for journalists who are associated with media organizations that have the resources to tackle them using the court system.�� In the case of access to information and publication bans, protracted litigation often eventually results in favourable decisions for freedom of expression. But litigation takes considerable resources – time, energy and money. Big media companies think hard about where they will allocate their budgets. Citizen journalists have the most to lose, as they generally have little hope of funding the expenses involved with litigation.

The Quebec Proposal

So, is the answer to license journalists?�� This is the question being posed now by the Quebec government.�� Quebec’s Culture Minister has recently put out a consultation paper asking for public comment on a plan to regulate the Quebec media.

The genesis of the proposal was not the Supreme Court’s comments in The Globe and Mail case.�� It derives from a report published earlier outlining concerns that the conditions of practicing professional journalism are deteriorating in the wake of competition by new and perhaps less disciplined entrants to journalism, and the effect generally of the internet on journalism.

The proposal is new, and is being studied by the Quebec media, including The Globe and Mail, which publishes nationally. But it is not favored, even by the established media that could potentially benefit the most. The National Post has advocated against it, in a recent article calling it:�� “a paternalistic approach that that reveals a failure to grasp how quickly technology is changing delivery of the news…”

The Globe and Mail published an editorial in the August 27, 2011, edition of the paper that crystallizes the issues well.�� I’m going to take the liberty of quoting the entire piece, since not only does it address the issue of licensing of journalists narrowly, but sets it in the broader context of our topic today – digital media, journalism and freedom of expression.

“A licensing system for journalists being discussed in Quebec is a form of press regulation that would put limits on the free flow of information.

The licensing system would create a “professional journalist” designation, backed by Quebec law that could provide for preferential access to government sources and extra rights to protection of sources. That may sound seductive to some journalists. Exclusivity, bargaining power, prestige and money may be seen as side benefits to a professional licensing system administered by a body of journalists. But the damage to press freedom, and therefore to individual journalists, card carrying or otherwise, would be considerable.

How? Controlling access to sources or to news conferences would by definition mute or limit some voices.�� Who might be shut down?�� Those who cannot afford professional schools, if that is what is required for a designation. Or those who find, whether at 14 or 94, that they have something to say, in a newspaper or on Facebook or in forms not yet invented. The group of people excluded would be massive.

And the free flow of information would be subject to state control.�� Government advertising would be restricted (under one proposal) to those news organizations that meet accepted proportions of “professional” journalists.�� News organizations that don’t could be destroyed – including Internet start ups that could one day become as large and powerful as the Huffington Post.

A proposal to make French language proficiency a requirement of journalists could shut down voices in minority-language media.�� The proposal shows that political imperatives other than journalistic ones could be imposed on a licensing system.

What is a journalist?�� It helps to be able to read and write – but a camera may be enough.�� What really matters is zeal for the story, within the boundaries set by laws of defamation, privacy and so on.�� At the very moment that a multiplicity of talents and voices, emerging thanks to new technologies, has helped to topple dictators in the Middle East, Quebec is rejecting the marketplace – of ideas, talents, desires, money and ingenuity – and trying to replace it with state-approved controls.”

Freedom of expression is a right that requires vigilance to uphold, certainly internationally, but also here in Canada.�� All Canadians (not only journalists) have much to gain by nurturing and protecting that right.�� Digital media has unlocked incredible creative potential within traditional media and has brought competition to the marketplace of ideas and journalism.�� However, despite the many advances technology has provided and the massive potential of digital media to journalism – as we have seen – there have been some interesting, and some alarming, reactions.

Freedom of expression is not to be taken for granted – and you, the future lawyers with the best grasp of what new technology is capable of, and the best handle on how to protect the intellectual property -- the journalism – created – will have a chance to be the next wave of defenders.�� It is an exciting time to be entering this field, and I wish you all the best of luck.

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Only one post remains on the and it is tellingly tagged "RIP" and "the dion effect."��Dion's lawyers sent Nick Angiolillo, the New 91��ɫ blogger who runs the satirical Tumblr site which mocks silly photos of the singer, letter that him to remove all the original posts.

Angiolillo claims that he is likely in the right, but that he doesn't have the financial resources to engage counsel to respond; a wise choice on his part. There are a lot of issues at play here. Firstly, there may be a marked difference between the privacy rights and image/likeness sovereignty that can be demanded by an average citizen as opposed to a celebrity. Another issue here is practically a staple of many IP dilemmas: one nation's protection may be different than another’s, but a URL is, for the most part, international.

What about the fact that they are in many cases the work of photographers? What would be most interesting to know is whether or not Angiolillo purchased the images and rights��from photobanks or simply cribbed them off a Google search. If the latter, then Celine Dion's cease and desist letter��may only have been the first of several to arrive.

This brings us to an interesting point: attributing the rights of a photo to the photographer may be an outdated and archaic way of organizing online property. Indeed, now that one cultivates, fosters and monitors their online presence, one’s reputation seems to be more valuable than a single photo (or in this case, many). When photographs were primarily utilized by print sources, their regulation and distribution could be easily controlled by the Copyright Act. The world of Internet, however, leads one to ask: what are the rights of the subjects of these photos?

And finally, on the self-expression side, is there any sympathy for the fact that the blog was a genuine piece of tongue-in-cheek parody and not some kind of explosive and commercialized meme? A similar, but intensely more sophisticated site, , has t-shirts and advertising and thus the bloggers in this case are making money by making fun of celebrities. Angiolillo's grassroots site stands in remarked contrast.

Canadian courts have the 'parody defence' of material subject to the Copyright Act. This case, however, would likely be subject to US standards of 'fair use', where using material for parody purposes has been established a .

The ultimate lesson, however, is that in the early days of any legal arena with many suits pending and little precedent work – as most certainly the case with digital intellectual property and likeness law – those with the money to engage lawyers��have the upper hand.

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Disgraced UK tabloid News of the World has under the mounting weight of the . As investigations heat up and criminal charges seem imminent, it is worthwhile to examine the law that prosecutors will seek to uphold and once again wonder why such little action has been taken until now.

The UK’s (RIPA) is what transforms phone-hacking from a mere moral wrong to a bona fide legal offence. Specifically, s. 1 of the Act criminalizes the interception of phone calls unless performed by a member of the police or intelligence agencies acting with a warrant from the Secretary of State. Per s. 5(3), such warrants can only be granted in order to protect national security, prevent or detect serious crime, or safeguard the economic well-being of the UK. Notably, there is no exception for journalists or otherwise private citizens – even those purportedly acting in the public interest.

If a recent law, RIPA is hardly a novel concept. The Act was a concerted effort by the Blair government to align the activities of the state and its citizens with the . Article 8 of the Convention holds that “[e]veryone has the right to respect for his private and family life, his home and his correspondence.”

Given both the law’s phrasing and clear appeal, there has been regarding the interpretation of RIPA in the context of phone-hacking. Even News of the World editor Clive Goodman and private investigator Glenn Mulcaire – the only two individuals yet charged in the scandal – during their trial in 2006. Rather, they went so far as to submit unreserved apologies along with their pleas of guilty. The voluntary shutdown of the paper by parent company News Corp also seems to be a tacit agreement with the application of RIPA to phone-hacking. Although it is impossible to know how future defendants in this scandal will plea, it thus seems doubtful that any would try to mount a serious challenge to the law.

All this begs the question: Given the increasingly “” spanning all echelons of the news world and the mostly undisputed consequences that RIPA bears for such evidence, how has such intrusive journalism escape punishment for so long? Even if the scandal only erupted in 2006, phone-hacking by British reporters has been a known phenomenon since . As noted, RIPA was passed in 2000. That leaves a nine year overlap in which only two individuals were charged. As I mentioned in , it seems that, as this scandal unfolds further, journalists will not be the only ones left with some explaining to do.

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The United Nations has released a that examines the relationship between Internet access and the right to free expression under Article 19 of the (UDHR).

Special Rapporteur author of the Report, argues that the Internet has become the primary medium by which expression can be exercised and calls upon UN member states to enact policies that “facilitate universal access to the Internet” and place as “little restriction as possible” on the flow of online information.

The Report was in response to a growing trend of state-imposed restrictions on online discourse intended to “mobilize people to challenge the status quo.” Commentators point to the recent information blackout in and the as examples of such conduct.

The Report directs UN member states to implement a number of policy reforms to better promote expressive freedom on the web. First, the Report recommends that states enact policies to protect the of Internet users. To achieve this goal, states are urged to abandon the use of “real-name registration systems” that require users to identify themselves before they can post comments or upload content.

Second, the Report recommends that governments “avoid or amend laws that criminalize online expression.” La Rue notes that states will justify laws that censor dissident political expression in order to “protect individual reputation (or) national security.” As such, the Report chastises the use of national security or counter-terrorism as a justification for enacting criminal sanctions against expression unless an “imminent legitimate threat is demonstrated.”

In addition, the Report calls for the elimination of provisions within that allow governments to collect user names and passwords on the grounds of national security.�� La Rue argues that such provisions have enabled governments to “identify and track the activities of…opposition members,” thereby compromising the ability of human rights activists to express themselves anonymously. (The provides one case example.)

have commended La Rue’s Report for bringing to the forefront of policy discussions the use of state power to monitor the activities of Internet users.�� In addition, the Report has provided a modern interpretation of the UDHR by expressly including online expression within the scope of civil and political rights. Indeed, the Internet has become a valuable tool of empowerment for individuals, particularly in countries without independent media and access to other human rights.

However, La Rue fails to address a number of challenges associated with the practical implementation of his policy recommendations. First, the Report that any law that curtails Internet access and online expression violates the UDHR, even if that limitation is the result of intellectual property law. Indeed, certain IP policies, such as copyright protections, can limit user access for years. In addition, the Report’s blanket endorsement of user anonymity may frustrate attempts by states to impose regulations to combat Internet piracy.

In addition, the Report gives states little practical guidance on how to implement and protect the right to free online expression. Rather, the Report defers to the discretion of states to “adopt concrete strategies and policies” to reconcile domestic interests with international human rights obligations.

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