David Lammy, Member of Parliament for Tottenham, has the suspension and surveillance of the BlackBerry Messenger (“BBM”) service after evidence indicated that the popular communication platform helped facilitate the .

to Lammy, rioters prefer using the BBM service to “coordinate and spread the word of the police clashes, looting and arson” to other platforms such as Twitter and Facebook because the messages are encrypted and difficult to decode by authorities. Accordingly, the UK government has put pressure on Research In Motion (“RIM”), the creator of the device, to assist police in gaining access to BBM messages.

The legal basis upon which the UK government derives its authority to monitor BBM messages involves legislation permitting “ Under the law, RIM can be ordered to provide authorities with information of users suspected of unlawful activity.  Earlier this month, similar legislation to obtain access to BlackBerry user data as part of efforts to fight militancy and security threats over telephone communications.

Among the most outspoken protestors of Lammy’s proposal is a group of hackers known as Teampoison. The group hacked RIM’s , and posted a that warned the company not to cooperate with the police. Unfortunately, the threatening tone of the message detracted from any otherwise legitimate position. Indeed, there are strong reasons to consider protecting encrypted messages from police surveillance. First, as , uncensored social media often serves as a critical platform for marginalized groups to express their grievances vis-à-vis the state. Free expression on the Internet, for instance, has been deemed a fundamental human right by the United Nations.

As noted by , one must not place blame on the technology itself for inciting the riot, but instead examine the underlying causes that contributed to the social unrest. Furthermore, Butcher points out the many ways BBM, Twitter and Facebook have helped authorities and citizens cope with the Riots. For instance, the Twitter account has been quite successful in restoring order.

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On July 12, 2011, the Court of Justice of the European Union (ECJ) issued its on the long-standing dispute between cosmetics manufacturer and concerning the illegal sale of ��’O��é���� products on the online marketplace.

��'����é���� on the basis that eBay had failed to prevent their users from violating ��'����é����'s trade-mark rights. The violations cited by the company included the sale of cosmetic samples meant for free distribution and the unauthorized sale of products intended for markets outside the EU to citizens of EU Member States (an infringement known as ). In addition, ��'����é���� claimed that eBay assisted users in locating goods on the site that infringe ��'����é���� trade-marks by purchasing keywords from online referencing services such as . In response, eBay asserted that, as mere hosts of the transactions, they were exempt from liability under the governing (Directive).

After numerous dismissals at the national level (the most recent of which came from the ), the ECJ found in favour of ��'����é����, holding that online market operators such as eBay cannot rely on the exemption from liability under the Directive if it has played an “active role” in the infringement by optimizing or promoting the items for sale. Moreover, the court noted that, even if the operator has not played an active role, it cannot rely on the exemption from liability if “it was aware of the illegal nature of the sales their sites facilities” and, once aware, “failed to act promptly to remove the data concerned from its web site or to disable access.”

With this ruling, the ECJ has added much needed clarity to the EU IP regime and bolstered the protections afforded to brand owners in online marketplaces. By holding operators accountable for their negligent failure to prevent and remove trade-mark infringing content, the Court has forced companies like eBay to integrate proactive measures into their policies to ensure IP rights are respected by their users.

Furthermore, the ECJ has upon EU Member States to hold operators of online marketplaces accountable under EU IP law, noting that, under the , Member States must “take measures intended not only to bring to an end infringements of intellectual property rights but also to prevent further infringements of that kind.” To achieve this goal, the ECJ has permitted national courts to issue injunctions against operators who refuse to bring an end to infringements of IP rights and prevent further violations from occurring.

This ruling has been praised by commentators such as as a much-needed modernization of European trade-mark law, which has been "strained under the pressure of…the internet age… and the rise of online commerce."

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On June 27, 2011, the tobacco giant issued a announcing its decision to commence legal action against Australia over which, they argue, illegally diminishes the value of their trade-marks.

The pending legislation, referred to as the Tobacco Plain Packaging Bill 2011, would require tobacco companies to adopt a standardized form of packaging for their products. The legislation prohibits companies from printing logos, promotional text or colorful images on cigarette packages. Instead, brand names must be displayed in a prescribed font, colour and position, and each package must contain of illnesses caused by smoking.

Philip Morris Asia, which owns the Australian Philip Morris Ltd., argues that “the forced removal of trade marks and other valuable intellectual property” from cigarette packaging is “an expropriation of Phillip Morris’ investments” without fair compensation and therefore violates Article 6 of the (“AHBIT”), which protects investments from each country in the other’s territory. , a spokesperson for Philip Morris, the “plain packaging would severely diminish the value of the company’s trade-mark” as branding is “one of the absolute key valuable assets…(that)…helps us compete (and) distinguish our products.” As such, commentators predict that Philip Morris will seek monetary compensation for the loss incurred by the new legislation and an injunctive remedy that requires Australia to suspend operation of the law after it comes into force.

Although multilateral treaties such as TRIPS prohibit non-state actors from launching claims against state parties, explains that bilateral investment treaties such as AHBIT enable non-state actors to bring claims against a state party who breaches its treaty obligations. Therefore, Philip Morris has the requisite standing to launch its action.

Australian health minister, , has expressed confidence that the lawsuit can be successfully defended on the grounds of public health. Professor Kurtz concurs, noting that international law has supported a public health exception in multilateral treaties. For instance, the WTO contains an that allows states to pass regulations for public health purposes. While there are no equivalent clauses in the AHBIT, Kurtz asserts that “this does not necessarily mean that Australia’s proposed scheme will be found to breach the protections in the BIT.” He points to a number of cases (such as the 2005 NAFTA case of ) where states have “regulated for legitimate health purposes and succeeded in their defence of an investor-state arbitral claim.”

In my view, Australia’s proposed legislation would have troubling implications for free-speech and intellectual property rights. In this case, the Australian government has attempted to preserve Philip Morris’ trade-mark by maintaining it on the registry while preventing the company from using the trade-mark in the Australian marketplace. This course of action threatens to undermine the utility of the registry as the mechanism through which trade-marks are commercialized. Furthermore, the legislation restricts commercial expression beyond what is commercially reasonable, as it prohibits virtually all design elements that would enable a consumer to distinguish between competing products.

Unfortunately, the outcome of the dispute will not be known for some time. According to the Arbitration Rules of the United Nations Commission on International Trade Law, a three-month negotiation session between Australia and Philip Morris must occur before an arbitration proceeding can commence.

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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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On May 17, 2011, Ontario’s Information and Privacy Commissioner (OIPC) Dr. Ann Cavoukian released her on the state of privacy protection in Canada. The Report articulated a clear message to public and private institutions: “be proactive” in protecting personal information and online privacy.

Dr. Cavoukian that a reactive approach to privacy protection, which relies on “legislation meant to safeguard privacy,” will not keep pace with “the flow of information and advances in technology.” As such, the Report calls on institutions to embed “default privacy and access within processes and technologies from the outset” in order to avoid privacy breaches and inefficiencies caused by requests for government-held information.

Dr. Cavoukian has characterized her proactive model for privacy protection as The Report suggests that Privacy by Design be used as a standard to assess all new products, technology or services. For instance, the standard would require a firm to request access to customer information and clearly explain how the data will be appropriated. By doing so, it is that firms will mitigate risk and revisit assumptions about how much personal information is necessary for the system to operate effectively. The end result, according to Dr. Cavoukian, will be a “doubly-enabling, positive-sum, win/win relationship."

In support of the Privacy by Design approach, the Report highlights two case examples. The first involves the to embed privacy protection into their smart grid. The Corporation integrated a number of due diligence requirements into the initial planning stage in order to refine what customer information must be gathered and to design systems to protect the data.

A second case example was drawn from the Ontario Lottery and Gaming Corporation, which incorporated a privacy-protecting mechanism into its biometric facial recognition system (which is used to identify individuals who are banned from entering gambling institutions). If no match is found, the facial image is automatically deleted from the database.

The Report also highlights a number of key privacy policies in need of reform. Two salient issues include the protection of personal health information on mobile devices and the issue of standardizing the cost of health record access. The latter issue has been the subject of prior advocacy by Dr. Cavoukian, who has to establish a benchmark for access fees.

It appears that Dr. Cavoukian’s message has extended beyond Canada. The Privacy by Design concept has and was recently adopted as a resolution by the International Data Protection and Privacy Commissioners Conference. This summer, the OPIC intends to release a whitepaper on how a utilities provider in Germany has incorporated Privacy by Design principles into its organizational practices.

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On May 18, 2011, a review committee led by Cardiff University Professor Ian Hargreaves released a that deemed the UK’s intellectual property (IP) regime obsolete in the digital age. Prime Minster David Cameron commissioned the report following made by the founders of Google that the country’s current copyright laws would have made the creation of the American Internet giant impossible. The report concurred, stating that UK “copyright law has started to act as a regulatory barrier to the creation of certain kinds of new, innovative businesses.”

The report makes for reform, which cover patent, copyright and the policy-making process. In the patent realm, the report highlights the need for reform to prevent the formation of - overlapping intellectual property rights that impede technological innovation. According to , a member of the review committee’s expert advisory panel, patent thickets are most prevalent in the UK in fields involving “sequential innovation” such as information technology.

The report also advocates for sweeping reforms to the country’s copyright laws. Most notably, the report recommends that certain works be exempted from copyright regulation, such as parodies, critiques and non-commercial research (the former of which was borrowed from Canada’s proposed )). The report also recommends an exception for “format-shifting”, which would “allow individuals to make copies for their own and immediate family's use on different media.”

A particularly innovative recommendation involves This approach seeks to streamline the country’s licensing regime through a “one-stop shop” that facilitates access to creative content by consumers while ensuring owners are compensated. This exchange would also serve to remedy the UK’s problem of “orphan works” – copyrighted work whose author cannot be identified. At present, a large body of historical work cannot be distributed through digitization, as no entity exists to give permission for reproduction or republication. A licensing collective, paired with a clearance exception for use of the work, would provide such a mechanism.

Finally, the report includes reforms directed at the policy-making process. It attributes the historical rigidity of the country’s IP regime to “lobbynomics,” whereby powerful interest groups have monopolized the “data needed to develop empirical evidence” and manipulated it to support IP policies with little economic benefit. To combat this problem, the government needs to ensure policies are based “on transparent and rigorous economic methods” that lead to “independently verified research conclusions.”

Although the Hargreaves Report calls for the relaxation of UK copyright law, it expressly rejects the idea of adopting the US doctrine of , which allows copyright material to be used without permission under certain conditions. While Prime Minister Cameron , the report concludes that the fair use doctrine would be problematic on a number of fronts. First, it notes that the doctrine emerged in the US by case precedent and would be too complicated to replicate in the UK legal system. Second, it notes that the factors used to determine fair use are highly subjective and would likely produce a high-volume of lawsuits. Lastly, the report questions whether EU law, which serves as the UK’s policy framework, would tolerate the adoption of an open-ended fair use exception.

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On May 3, 2011, a coalition of artists, led by FilmON founder and billionaire movie mogul , filed against CBS Interactive, its subsidiary CNET, and the Lime Group, owners of the file-sharing platform Limewire.

The alleges that CNET, through its popular website , served as “the main distributor of Limewire software” and received “massive amounts of revenue…on a pay per download basis and also from advertising revenues generated by advertisements placed on the download screen.” The Complaint follows from the above that CBS and CNET are guilty of “massive copyright infringement” and seeks both compensation and an injunction order to prevent CNET from promoting file-sharing software on its website.

The legal basis of the Complaint rests upon the doctrine of , which arises when “one who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another” (). The lawsuit alleges that CNET’s promotion of file-sharing software in return for money materially contributed to the copyright infringements that arose through use of Limewire.

The second argument advanced in the Complaint is based on , a recent US Supreme Court case that interpreted the knowledge threshold for contributory infringement. The court held that a distributor is liable for acts of copyright infringement committed by users of its product if the distributor intended to induce the infringement. The Complaint claims CBS is guilty of inducement by paying its CNET editors to publish articles that explain how users can maximize the file-sharing software and by giving Limewire four and a half stars out of five in a software review.  (Note: A similar argument was advanced by Ellen Seidler in her keynote speech at Canadian Music Week 2011.)

If the lawsuit is successful, CBS would face devastating financial consequences, as they would be subject to damages similar to those awarded to the Recording Industry Association of America in its highly-publicized against Limewire. Although the outcome of the damages at trial has yet to be determined, commentators estimate the quantum of damages to exceed a .

In my view, the argument advanced in the Complaint could have troubling implications for free speech, as it attempts to expand liability for online piracy by suggesting that CNET’s editorial comments satisfy the ‘inducement’ requirement for contributory infringement. If the court accepts this argument, websites that include an accompanying link or roadmap to a discussion of a file-sharing application may face liability for infringements committed through use of the software. Such a precedent would not only be impossible to enforce, it would also discourage free and open discussion on the web.

In a , CBS dismissed the allegations as frivolous, noting that the Complaint is “riddled with inaccuracies.” One example was pointed out by , who refuted the allegation that CNET explicitly condoned illegal downloading by referring to an on the website, which states that “using file-sharing software to distribute copyright material without authorization is illegal” and that “CBS Interactive does not encourage or condone the illegal duplication or distribution of copyrighted content.”  

Additionally, Bates notes that CNET is too far removed from the infringing activity to bear liability. Indeed, Limewire was one of over 100,000 available file-sharing platforms available for download on CNET, and can be used for a number of legitimate purposes. The Compliant contains no evidence to suggest that CNET induced users to choose to download Limewire over an alternative and use the software to commit copyright violations.

Interestingly, this case, considered by many to be “,” was argued by , a prominent IP lawyer and partner at the top-ranked IP firm of . Zeller on the basis that CNET, unlike other websites providing links to pirated content, stood to profit from downloads of Limewire and therefore used its editorial sections as an inducement. If the courts agree, this case could mark the beginning of a new chapter in litigation over illegal file-sharing.

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CBC News that a group of assailants known as the “Turkish defacers” successfully hacked into the web domain shared by the Ontario Court of Appeal, Superior Court of Justice and Ontario Court of Justice. On April 25, 2011, users who attempted to access were re-directed to a photo of a man bearing a handgun, with the word “HACKED” prominently displayed below the image.

The infiltration prompted Attorney General Chris Bentley to shut down the website. The provincial government has since replaced the hacked domain name with  . Fortunately, no other provincial website was compromised and court operations and trials were not affected by the incident.

This latest attack has come in the wake of recent commitments by the Federal Government to redouble their efforts to combat cybercrime. On October 3, 2010, the government “Canada’s Cyber Security Strategy” in order to “enhance protection from cyber threats for Canadian governments, industries and families” and strengthen “threat monitoring and response capabilities.” To achieve these goals, the government pledged to invest $3.5 million in an “Information Protection Centre to combat…hackers and cyber attacks.” This investment, combined with a budgetary allocation of $90 million over 5 years, constitutes Canada’s financial commitment to cyber security.

However, there is evidence to suggest that Canada’s current investment is not sufficient to protect government websites from malicious attacks by third parties. Indeed, a recent CBC confirmed that Canada’s current web defense regime lacks the resources to effectively monitor the vast network of online government services. A team of “white-hat hackers”  - computer experts paid by organizations to identify vulnerabilities in computer systems - reported that Canadian systems are outdated and lack the manpower to routinely scan for system vulnerabilities.

In February 2011, the Canadian government received a over the need for increased surveillance of government websites when a hacker, allegedly based in China, obtained highly classified information from within the government’s Finance Department and Treasury board. Discovery of the hack was made possible only after the Communications Security Establishment (CSEC) performed a comprehensive test for security vulnerabilities on the network.

The deficiency of Canada’s response to cyber crime is particularly pronounced when compared to other nations.  In 2009, the US government a $40 billion National Security Initiative to combat cyber attacks. The British government has also its own $1.1 billion cyber security initiative. Canada’s modest $18 million investment suggests cyber security has yet to become a defensive priority.

The issue of cyber security has become an increasingly salient issue in Canada’s court system, as federal and provincial jurisdictions have gradually integrated web-based filing systems into their operations. At present, the in addition to a number of provinces (see and ) requires parties to file electronic versions of notices of appeal, factums and records, which are then made accessible during hearings through equipment installed on the bench. As courts move toward a paperless filing system, the integrity of the legal system, particularly with respect to the privacy rights of litigants, will become increasingly dependent on the provision of safe and secure web services. The government’s current financial commitment to web security indicates that Ottawa is not prepared to make the necessary expenditures to achieve this goal.

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