This blog covers the second panel that was comprised of (University of Ottawa), (University of Melbourne Law School), Dr. Randall Stephenson (author of ) and was moderated by (Partner, Fasken Martineau DuMoulin LLP).

Prof. Bailey’s presentation ‘Reputation 3.0’ looked at the intersection of law, technology and equality. She talked about that was funded by the LCO and focused on 20 diverse young people from the age group 15-21. The participants were asked about their “online experiences with truth and falsity, reputation and anonymity and the quality and utility of existing mechanisms for responding to defamatory attacks”. The research highlighted that, while untrue statements can hurt their reputations, truth can be equally damaging in the context of confidentiality and privacy. This was consistent with the participants’ behaviour online, where they preferred having multiple reputations crafted for different social media platforms. Consequently, the participants preferred responses that maintained privacy and confidentiality, while preserving transparency and accountability.

Her research showed that young people were concerned about privacy and disclosure of intimate images but they preferred community-based responses to reputational harm over escalating the issue by taking matters to the police.

She concluded by stating a few takeaways for law reform. Firstly, legal provisions for protection of reputation are indeed important for control of information. Secondly, reputational harm is better mitigated by community-based responses to individuals and focus should be on rights-based education, rather than civil and criminal litigation, which is helpful only in the most extreme circumstances.

Prof. Andrew, who researched comparative defamation law of Australia, the US and the UK, spoke about how it ultimately boils down to the doctrinal workings and procedural regulations of each jurisdiction. He was of the view that defamation and privacy are two of the greatest challenges in media law. He stated that, historically, only certain aspects of reputation have been protected, such as material that is true or privileged. He argued that data and privacy are connected and that this can be seen from the plethora of high-volume, low-value cases that are being brought before the courts. He argued that as a result, we need to reconsider our presumption that privacy and defamation are separate spheres of law that need to be treated in isolation, with the occasional intersection between the two.

Dr. Randall, quoting from his own comprehensive comparative analysis, said that there has been a universal rejection of ‘actual malice’ rule outside the United States. The ‘actual malice’ rule is an essential element in proving defamation, where the plaintiff must show that the statement was “”

Yet, he was of the view that comparative analysis is important but that care should be taken since one size does not fit all. The law must be used to restore accountability and should act as a check, considering the ongoing 'fake news' crisis in journalism and how digital mass surveillance is being used by governments and corporates across the world. Both these factors, he warned, would play a significant role in the dynamics of future reform.

Peter Downard stated that the proposed reforms would be an interesting experiment since this would be a rethinking of defamation law from the ground up. He was quick to add a caveat that we must understand the plaintiff and defendant’s relationship when looking at defamation in order to have an accessible justice system. We must consider the context of the defamatory speech. While the standard of proof must not be so low that by default everybody would seem to engage in such speech.

Defamation in the internet age raises some very important questions regarding Access to Justice (‘A2J’) and we need to re-think how reputational harm online is linked to reputational harm offline. While reputation can be harmed with falsity, it is equally possible to damage reputation from private and confidential information. We need to reconsider our presumptions on privacy and defamation and realize that they are linked.

Today we face an unprecedented assault of misinformation, fake news and falsities, and law reform needs to tread carefully. While it must balance free speech and privacy interests of individuals, consideration needs to be made towards A2J in the face of the onslaught of high volume, low value privacy cases that threaten to clog down our justice system.

It will be interesting to see how the legislature responds to future reform, especially considering how we have treated privacy and reputation as two separate spheres of law. While we grapple with ‘fake news’ and mass surveillance, we must restore accountability and truth. Not just for the big guys but also for the most vulnerable section online, the kids.

Prasang Shukla is an IPilogue Editor and recently completed his International Business Law LL.M. from Osgoode Hall Law School.

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The Minister’s comments echo Canadian and international research regarding the costs of wireless services across the country. For example, a 2016 (Nordicity is a consulting firm that produces an annual telecommunications services price comparison study), prepared for the Canadian Radio-television and Telecommunications Commission (CRTC) found that Canada ranks the highest out of 8 selected Organisation for Economic Co-operation and Development (OECD) jurisdictions in Level 1 service basket pricing of Mobile Wireless Telephony (the lowest usage basket) and second highest in Service Basket 3, 4, 5 and 6 (denoting higher usage). The OECD, , stated that to bring down the cost of mobile subscription, Canada needed more competition in the telecom sector by removing foreign ownership restrictions.

, Rogers Senior Vice President of Regulatory, argued that such reports and claims are flawed, because they only factor in the premium players and do not account for flanker brands like Freedom, Chatr, Fido and Koodo.

This claim is not entirely true; although the flanker brands were not used to calculate the national aggregate, they were analyzed in a to demonstrate the price difference between incumbent brands (TELUS, Rogers and Bell), the flanker brands, and new entrants such as Videotron (which recently ). Overall, these flanker brands were 14% cheaper than incumbents and the new entrants’ prices were a further 20% lower than those of the flanker brands. Thus, the new entrants were almost always cheaper than the incumbents. In certain price brackets (such as Level 4, that includes unlimited calling, 2GB data and 300 SMS), they would cost over 60% less than the incumbents. Consequently, competition from new entrants is good for consumers, as was re-iterated by , Executive Director and General Counsel, Public Interest Advocacy Centre, who bemoaned the lack of a fourth national carrier that could effectively compete against the incumbents.

Minister Bains also announced that the government has that route phone calls, texts and data through WiFi networks. Earlier this year, the CRTC ruled against WiFi-based providers, . These Mobile Virtual Network Operators (MVNOs) have had a fair deal of success south of the border; for example, Republic Wireless, which operates off the Sprint network, has had .

However, , the Senior Vice President of Federal Government & Regulatory Affairs at TELUS, argued that this approach works because Sprint is the weakest network in the US and has an excess network capacity. He argued that ninety-nine percent () of Canadians have access to LTE networks because Canadian telecom companies have been successful on the fronts of coverage, quality, and investment. He went ahead to offer cautionary advice against the WiFi first approach saying, “Don’t mess with success because that is actually what has got us here.” , Chief Legal & Regulatory Officer for TekSavvy Solutions, countered that MVNOs like Republic Wireless have at least been successful in stirring competition, bringing the prices down .

To end the panel, the participants were asked to place themselves in the shoes of the federal government , Chief Legal & Regulatory Officer and Executive Vice President for Corporate Development at Bell Canada, argued that Over-the-Top (OTT) services like Netflix should be treated the same as other broadcasters. For the , he argued that since there is a significant amount of facilities based competition, there should be less regulation. He was also in favour of keeping that stipulates carriers to charge a just and reasonable rate for their services.

Interestingly, Bibic was in favour of keeping , which provides the CRTC with powers to enforce net neutrality (the ). While Abramson batted for more transparency in the process, Woodhead was of the view that not much needs to be done in the Telecommunications Act. Woodhead also argued that , which deals with the objectives of Canadian Telecommunications Policy, needs to be looked at as it is conflicting and gives the CRTC broad powers and having a regulatory answer for everything is a bad macroeconomic policy.

Finally, Watt aptly summed up these conflicting opinions saying, “I think we can all see why the rewrite will probably take five years. I wish us all well.”

and the lack of competition from a fourth national player. It will be interesting to see how the CRTC responds to the call for review of its decision against Wi-Fi based MVNOs. Till then, .

Prasang Shukla is an IPilogue Editor and an International Business Law LL.M. candidate at Osgoode Hall Law School.

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The brings together the leadership of Canada’s telecom, broadcast, and IT industries. For its 16th year, the CTS focussed on and featured keynote presentations and panel discussions on the range of issues facing industry and public policy makers in Canada. IP Osgoode and the IPilogue team members thank the CTS’ organizers ( and ) and for their generous support to allow us to attend.

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Earlier this September, the decision of the Delhi High Court in������DU Photocopy] when Endlaw J. proclaimed that, “”,����of the US Court of Appeals for the Second Circuit. The well-reasoned ninety-four-page judgment held that the fair dealing exceptions encompass the right to create ‘course packs’ (a compilation of study materials from several books) and broadened the interpretation of the common-law principle of fair dealing.

The above suit was instituted right on the heels of��the Alberta decision (which was also quoted in the DU case) in which, in 2012, the SCC allowed teachers to distribute photocopies of study materials to their students under fair dealing (even before the inclusion of ‘education’ in s.29 by an amendment). In��DU Photocopy,��licensed agents were making photocopies for the students on behalf of their teachers.

The Delhi High Court judgment in��DU Photocopy��upholds the right to access of education under the fair dealing exception provided in Section 52(1)(i) of the Indian Act]. The Indian Act creates ‘education’ exceptions similar to its Canadian counterpart (especially in light of the 2012 amendments that included ‘education’ as an allowable fair dealing purpose).

Section 52(1)(i) allows for exceptions to copyright protection where there is:

i. “The reproduction of any work –

(i). By a teacher or a pupil in the course of instruction; or

(ii). As part of the questions to be answered in an examination; or

(iii). In answers to such questions;”

The Delhi High Court included the University within the ambit of the term ‘teacher’ while considering the licence for making course packs provided by Delhi University to the defendant. It clarified that if the University was not competing with the price fixed by the publisher, it would not amount to acting commercially. It also interpreted the term ‘in course of instruction’ broadly to include reproduction of work outside class during the entire academic year. This is similar to the broad approach Abella J. took when she allowed teachers to provide photocopied notes for the use of students in class in������������ٲ�.��In particular, she interpreted ‘private study’ not to mean studying in “splendid isolation”.

It was argued that instruction should only mean lectures and tutorials but the court refused this contention, stating that the legislature intended to broaden fair dealing by choosing to use ‘instruction’ instead of ‘lecture’.

However, publishers impleaded such a judgment would be a death knell to their business.[1] There is an instance of photocopying up to 33.8 per cent of the book (although the average of all books copied was��8.81 per cent, see to the petition). In all fairness, if we look at the approach taken by the SCC in��, the requirement under ‘amount of dealing’ is not met. In Canada, any dealing with more than 10 per cent of the work [2]. The DU Photocopy judgment remains silent on the amount of dealing.

The way out is to follow the reasonable nexus doctrine as suggested by��. In future, the courts must examine if there is a reasonable connection between the photocopying and the furtherance of educational instruction. If the prescribed text is not available (or priced at a prohibitively high level) then such a dealing may be considered fair.

As for the ‘death knell to publishing industry’ argument, it seems a bit far-fetched. Studies have suggested that the��. Also, 33 out of the 52 authors whose work was in question gave a ‘no objection’ to the course packs, which demonstrates that fair dealing does not necessarily impact scholarship.

The first copyright law in the UK, the Statute of Anne, 1710, described itself as “.” The concept of fair dealing evolved in the UK as a broad common law principle which was later, unfortunately, fettered to an exhaustive list that was later transcribed to Canada.

While other common law jurisdictions are increasingly seeing excessive copyright as detrimental to the right to access of education, it will be interesting to see how the Federal Court rules in����(which deals with the issue of whether the copyright practices at 91��ɫ fall under the fair dealing exception of the Copyright Act) now that��

The intellectual property world is watching with bated breath. Your move, Canada.

Prasang Shukla is an IPilogue Editor and an International Business Law LL.M. candidate at Osgoode Hall Law School.

[1] The Chancellor, Masters & Scholars of the University of Oxford & Ors v Rameshwari Photocopy & Anr, CS (OS) 2439/2012, at��12 at para (n).

��Statement of Royalties to be Collected by Access Copyright for the Reprographic Reproduction, in Canada, of Works in Its Repertoire��(Copyright Bd.), online: , at para 288.

��

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