The Court noted that the BitTorrent technology involved in this case brings about complex concerns.  Since torrent files are based on the idea of a “swarm” of users uploading and downloading pieces of one file simultaneously, there are potentially many more users downloading and sharing than in the more straightforward peer-to-peer process or single website hosting files.  Some of the ways that were suggested to the Court, on behalf of the claimant, for at least curbing the prevalence of the photos were tracking the IP addresses of those sharing the torrent, filtering the claimant’s name from search engines in connection with torrent sites, or having ISPs block access to those torrent sites hosting the file.

The claim was brought against “Persons Unknown”, since none of the users who seeded the files were identified by their IP addresses.  Claiming against users yet to be identified was required, AMP argued, because the number of seeders, and therefore potential defendants, would be constantly increasing over time.  The reasoning is that “by identifying the class of persons unknown by reference to their particular characteristic, namely any person in control of any part or parts of the relevant files containing the relevant digital photographic images, would be a sufficient description of the Defendants to enable them to be served with any order which the court might make.”  The Honourable Mr. Justice Ramsey was persuaded by this argument, and agreed that the case was appropriately brought against “Persons Unknown”.

AMP was seeking injunctive relief under two separate acts dealing with invasion of her privacy (the ) and harassment (the ).  In regards to the claimant’s privacy, Mr. Justice Ramsey had to consider whether she had a reasonable expectation of privacy when it came to the photos on her phone.  Mr. Justice Ramsey stated that “in this case the circumstances in which the photographs were taken, the nature and purpose of the intrusion caused by the distribution of the photographs, [and] the absence of consent” all made a strong case for AMP having a reasonable expectation of privacy.  This expectation of privacy, however, still needed to be balanced with the freedom to receive and impart information without interference which is also provided by the Human Rights Act.   For Mr. Justice Ramsey, it was clear that the claimant’s right deserved to take precedence in this situation.  Furthermore, since AMP was found to be “likely to establish at trial that publication should not be allowed” she was granted interim relief through an injunction.

Regarding the harassment claim, Mr. Justice Ramsey felt that the situation was such that it met the six factors previously established in to make out a claim of harassment:

(1) conduct which occurs on at least two occasions,
(2) targeted at the claimant,
(3) calculated in an objective sense to cause alarm or distress and
(4) objectively judged to be oppressive and unacceptable,
(5) “oppressive” and “unacceptable” depending on the social or working context in which the conduct occurs
(6) with special consideration of the difference between conduct that would actually be harassment and conduct that is simply unattractive or unreasonable.

Mr. Justice Ramsey therefore concluded that the claimant was to be granted relief both for breach of her right to privacy and harassment.  This entitled the claimant to an interim injunction to prevent the distribution of her images via any torrent site or through any other use  of a BitTorrent program.

Perhaps the most newsworthy part of this case is in the terms of the interim injunction that Mr. Justice Ramsey ordered, since those terms apply to the still unidentified “Persons Unknown”.  The order requires such persons to:

(1) immediately cease seeding any BitTorrent containing any part or parts of the files in question
(2) not uphold or transmit to any other person any part or parts of the files
(3) not create any derivatives of the files
(4) not disclose the name of the claimant or information that may lead to her identification, or the names of the files.

Professor Andrew Murray, who actually provided witness statements in the case, , largely based on the assumption that most of the seeders would be within the jurisdiction of the Court.  Professor Murray has some reservations, however, about whether the decision means that BitTorrent content can be regulated.  A sees a possibility of users of social networking sites like Twitter and Facebook being impacted by this decision in the future.

What remains to be seen is whether the order does in fact deter users from downloading the torrent in question.  Practically speaking, such a deterrent effect would be difficult or impossible to actually measure.  The goal of the Court in this case may have really been to scare away potential offending users, while not necessarily expecting to reveal IP addresses and track down seeders.

Another issue may be the fact that the Court’s jurisdiction cannot possibly cover all possible seeders, as anyone with an Internet connection and the proper software can download the torrent file in question.  Professor Murray has stated that the goal is not to “close down all seeders[,] just enough to turn the tap to a trickle.” The underlying assumption is that most of the seeders will be people with connections to AMP, and therefore within the jurisdiction of the Court.  It would seem that, while this decision may act as a deterrent in this particular instance, its applicability may be limited when a torrent file attains global popularity, (such as in the context of a world-renowned celebrity).

Brent Randall is a JD candidate at the University of Ottawa.

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The CRTC's decision reflects the same rationale of its previous decision. Back in 1999, the CRTC set forth the New Media Exemption Order as a means to allow continued innovation by stakeholders engaging in the growing opportunities of the Internet. The CRTC's decision to issue the Exemption Order was also due to their view that at the time, new media's effect on audience size was still limited. The general view was that regulating new media broadcasting was not necessary to achieve the policy objectives set out in the Broadcasting Act.

The recent decision comes in light of the decade of change reported by theNew Media Project Initiative ("Initiative") and the submissions from Broadcasting Public Notice . The Initiative released its regarding the cultural, economic and technological issues associated with new media broadcasting on 15 May 2008. Similarly, the CRTC's Public Notice called for comments on the issues pertaining to Canadian broadcasting in new media, specifically regarding themes such as the definition of broadcasting in new media, new media's impact on the Canadian broadcasting system, necessity or desirability of a regulatory measure for new media broadcasting, public policy issues, and the general appropriateness of the continued exemption of new media broadcasting.

As a result, the CRTC has decided to continue its hands-off approach to allow new media to flourish, fostering innovation and creativity. The CRTC believes that broadcasters are sufficiently equipped to adapt to the challenges of changing technology and were encouraged to embrace and innovate new methods of integrating new media into their business models. This view was countered by some parties, such as artists, writers, unions, etc., that argued that regulation would foster a stronger Canadian presence in new media. However, the CRTC holds that the traditional broadcasting framework cannot be imposed on new media broadcasting when evidence does not point towards regulation being a necessity (and in the meantime, eliciting positive development by remaining unregulated).

The CRTC also remains 'hands-off' on the issue of resolving digital rights, expecting the broadcasting and production sectors to develop the appropriate framework to resolve ownership and exploitation of digital rights.

One area of positive action, however, is the CRTC's decision to amend the New Media Exemption Order to prohibit gatekeeping of the new media environment. The amendment will prohibit any new media broadcasting undertakings that are the result of the conferring of an undue preference to access, either to themselves or another person, or by subjecting any person to undue disadvantage.

Also of note in this decision was the rejection of calls for a levy to fund Canadian new media broadcasting content. The proposal was put forth by many cultural groups to establish a fund to develop high-quality, professional Canadian new media broadcasting content. These groups also argued that Internet Service Providers (ISPs) and Wireless Service Providers (WSPs) were critical players in Canada's new media broadcasting and as such, should be required to contribute to such funding initiatives. Naturally, ISPs and other parties argued that ISPs are by definition not subject to the Broadcasting Act and as such, the CRTC lacks jurisdiction to impose a levy on revenues for broadcasting-related purposes. Also, such a fund was not required as new media plays a complementary role to traditional broadcasting sources as well as the fact that there are sufficient market incentives in place to provide high-quality professional content. Ultimately, the CRTC was of the view that there was insufficient evidence presented to establish that any funding to support increased Canadian new media broadcasting content would further the objectives of the Broadcasting Act. (The , which will come into effect in April 2010, will provide funding that may cover this area).

Although the idea of ISP levies was rejected, the CRTC nonetheless stated that it is important that the issue of whether the Broadcasting Act is applicable to ISPs be resolved. The CRTC intends to initiate a reference to the Federal Court of Appeal to determine this issue.

Despite the CRTC's refusal to get its hands dirty with new media broadcasting regulation, it stated that it will continue to monitor the evolution of the new media environment and is set to review the decision within 5 years.

The CRTC's decision also calls on the Government of Canada to address the need to develop a national digital strategy. The digital environment is changing very rapidly and the current state of legislation may not be flexible enough to compensate for the growth of the digital age. It was alluded to in the concurring opinion of Commissioner Timothy Denton that the CRTC has made the best decision that it could have within the confines of an almost obsolete Broadcasting Act. The Act is incapable of addressing the full extent of new media's effect. The statute is silent on new media technology and in light of the boom of the Internet, Canada desperately needs new legislation. The CRTC is conscious of the many other countries that have already developed national digital strategies (e.g. Britain, France, Germany, and Australia). Without its own digital strategy, Canada may risk being left in the dust of countries with more competitive legal frameworks for their digital realm.

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