Michelle Mao is�� an IPilogue Writer and a 2L student at Osgoode Hall Law School.

You may recall Usain Bolt’s subtle but impactful on August 23, 2022, adding a trademark emoji to his iconic quote, “To the World”. That tweet spoke to his trademark of his iconic “lightning” celebration pose, indicating Bolt’s possible plans to create merchandise using his iconic celebrity power and image. Indeed, when searching the United States Patent and Trademark Office (“USPTO”) database, the signature pose for many industries, including eyewear and accessories, clocks and watches, leathers, bags, clothing, footwear, games, entertainment, restaurants, etc. While Bolt’s trademark registration is for the rather than the pose, the use of poses and gestures in branding can potentially bring a new wave of “unusual” trademarks, especially as social media and technology have spread previously unthought-of but recognizable traits. One type of “unusual” mark would be celebrities’ recognizable poses or gestures.

For some time now, celebrities’ brand images have increasingly used their iconic poses or features to market their brand to promote endorsed goods and services. For example, Kim Kardashian’s body-shaped perfume gained fame several years ago for demonstrating the recognizability of Kim K’s body as her brand. In the sports world, the trend to trademark poses and gestures like Bolt’s victory pose has been demonstrated for some time, Mo Farah’s “Mobot” pose, Gareth Bale’s “elven of hearts” gesture, and Jesse Lingard’s “JLingz” gesture. Similar to Bolt’s trademark, one other notable trademarked pose as a design mark is Michael Jordan’s “” which represents Michael Jordan’s Collaboration with Nike – the Air Jordan line.

To discuss future legal considerations arising from this trend of trademarking “unusual” marks, including poses and gestures, we must first understand the purpose and limits of trademarks.

The essential purpose of trademark law is to allow one entity to distinguish its goods and services from another’s. Therefore, a when analyzing the possibility of trademark infringement is if the general public would be likely to confuse, be deceived, or mistake the source of the good or service. Trademarks do not necessarily prevent all others from utilizing the trademark in the future. A trademark protects a brand’s image by preventing others from imitating or devaluing the brand through association with a similar or identical mark. The USPTO that if you trademark a mark, it does not allow you to gain rights over the mark in all uses but only allows you to gain exclusive rights to it in its specific category of goods and services.

So, what happens when the industry you are in requires selling yourself? For example, an influencer’s job is to promote products and services through their looks, personality, aesthetics, etc. An influencer can establish their brand through iconic and recognizable traits such as poses or physical features. An influencer’s image can be used to provide an endorsement service of a product or another service (for example, a celebrity holding up a branded item to be photographed). The option to is available and is generally not an issue because likeliness is unique, but what about something more generic, like a pose, gesture, or silhouette?

The legal problem comes if the over whether an iconic or even trademarked gesture or pose is being used by a third party to refer to the originating individual or if the gesture or pose is used to signal an endorsement from the individual. For example, other athletes being pictured posing in Bolt’s victory pose may have sent a message that Bolt was endorsing them for whatever reason (luckily, in this case, it was a tweeted by Bolt in 2018 before this trademark was submitted). If displaying a pose or gesture causes consumer confusion, we enter the territory of trademark infringement.

It will be interesting to see how trademarks evolve beyond word marks and design marks alongside increased online marketing through influencer brand endorsements. While Usain Bolt’s trademark this time is only for the flat design mark of his iconic pose, there is no doubt that trademarking poses, gestures, and other iconic traits will be on the minds of celebrities moving forward.

The post Trademarking Gestures: Usain Bolt’s Trademark of Iconic Pose appeared first on IPOsgoode.

Photo by Brett Jordan ()

Meena Alnajar is an��IPilogue��Writer, IP Innovation Clinic Fellow, and a 2L JD Candidate at Osgoode Hall Law School��

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On October 4, 2021,��it was publicized that Facebook Inc.����the U.S Federal Trade Commission’s (FTC) antitrust case that aims to force Facebook��to��sell Instagram and��WhatsApp. The FTC initially filed a complaint that����and��requested the sale of Instagram and��WhatsApp��to prevent a monopoly over the social media market. Does Facebook��have a monopoly over the market?��Or��simply��a strong foothold?����

What is Antitrust��

The FTC’s Bureau of Competition enforces antitrust laws. These laws��. The market is said to be ‘free’ and active when there is aggressive competition. This competition is productive for society because it gives��such as lower prices, higher quality products and services,��and��greater��innovation.��

Antitrust laws try to����which are those monopolies obtained, preserved,��or attempted by a firm that tried to destroy its competitors on purpose. Under��, attempted monopolization is an antitrust offence if it meets certain criteria. The defendant must have employed����to obtain a monopoly in a defined relevant market. Second, there may be a dangerous probability that a��defendant will succeed in obtaining a monopoly unless��. While the FTC may appear to be blocking Facebook’s ability to maximize wealth by acquiring Instagram and��WhatsApp, this FTC case may be trying to preserve the competition and economic activity in the social media marketplace. In this particular case, the����and that Facebook controls 60% of the relevant market.����

Antitrust and Monopolies in the Tech Sphere��

Social media may be a broad, general marketplace and thus fail��to meet��one of the criteria under Section 2. Most social networks exist��in a niche, trying to����like Facebook once did, connecting people from around the world and writing on each other’s walls. This unique niche can then become a market on its own, but how exactly are these unique markets dominated by one defendant? Current suggestions focus on����in which case����over��WhatsApp��and Instagram. However, antitrust cases are few in high-tech industries, so FTC’s current complaint is difficult to compare in outcome due to limited jurisprudence.����

Facebook’s rebuttal����

Facebook has requested the FTC’s case be��. Facebook argues that the����with Instagram and��WhatsApp��which may demonstrate a limited factual basis that Facebook��since it acted with FTC’s approval. Further, social media is a rapidly changing market and Facebook still has��including��TikTok, Twitter,��and��Google.��

Conclusion����

People experienced the primary issue with Facebook’s mergers firsthand with the����outage on October 4, 2021. When a monopoly emerges, consumers have less choice and lose out on earnings. Consider the lost advertising revenue with influencers and companies unable to post on��Instagram, or��concerned loved ones who rely on��WhatsApp��to communicate. Perhaps if the app trifecta was separated, the outage would not have affected us at all. However, Facebook is a corporation,��and��corporations aim to maximize wealth.��The FTC once agreed with this when����Facebook’s purchases of����in the first place. It may be hard for the FTC to go back on their word and undo these��-dollar deals.

The post Facebook fights back against the FTC, claiming it is not a monopoly appeared first on IPOsgoode.

Photo by AbsolutVision ()

Emily Prieur is an IPilogue Writer and a 3L JD Candidate at Queen’s University Faculty of Law.

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Online privacy is, without a doubt, an area of growing concern. As technology takes a greater presence in our lives, lawmakers are right to turn their minds to its potential deleterious effects. However, with the new Liberal government proposal, and law students alike are left wondering if the Canadian Online Harms proposal will do more harm than good.

What is the online harms proposal?

In July 2021, the Canadian government released its plans for addressing online harms. The proposal was presented in two parts: outlining the government’s intent to regulate social media platforms, and a outlining details of the proposed law. The objective of the proposal is to reduce harmful content online. The government has a narrow focus, targeting content related to 1) child sexual exploitation, 2) terrorism, 3) hate speech, 4) non-consensual sharing of intimate images, and 5) content that incites violence. This proposal is consistent with the government’s previous content regulation efforts, such as and the proposed legislative changes to the . Canada is not the only government paving the path towards a more tolerant online community. In fact, the European Commission launched their own “” in May 2016.

How does the proposed legislation target online harm?

The proposed legislation requires online platforms to proactively monitor all user speech and evaluate its potential for harm within the five categories of regulated harmful content outlined above. Additionally, any person in Canada may flag content as harmful and online platforms . If successful, the legislation would require online��communication services like Facebook and Twitter to report content falling within the five categories of regulated harmful content to law enforcement.

The proposal bestows additional responsibilities upon the Digital Safety Commissioner, a . These responsibilities include the power to hold hearings on any complaint made to it, any detected non-compliance, or any matter within its jurisdiction under the Act, especially if the Commissioner believes it would be within the public interest. The language within the Act is worrisome, stating that the Digital Safety Commissioner may also conduct inspections of online platforms at any time, either on routine or ad hoc basis “” Ultimately, the language delineating the Commissioner’s responsibilities is unclear, creating concerns that the not-yet-appointed Commissioner may have unfettered power over online communication services.

The legislation also proposes penalties for non-compliance. The proposed monetary penalties are astonishingly high; online communication services could face fines of up to if they do not comply with the new rules. Companies like Facebook and Twitter may also foot the bill to recover the costs of such a proposal (e.g., the cost of a new Commission and Digital Safety Commissioner), as the legislation grants the Digital Safety Commissioner the power to implement as part of the cost to monitor online harm.

How would successful implementation of the proposal negatively impact privacy rights?

In essence, the Canadian Online Harms proposal gives rise to increased surveillance powers to the state.

The first issue surrounding the proposal is with respect to the increased surveillance associated with passing any rules outlined in the proposal. The requirement to monitor all user speech online is alarming, given the government’s proposal evades any potential restrictions on monitoring. Many argue that such a proposal could allow the government to increase their surveillance powers, and representatives at the go so far as to call this aspect of the proposal “”. Emily Laidlaw, the Canada Research Chair in Cybersecurity Law at the University of Calgary, . Laidlaw stated, “You’re essentially saying that a private body needs to actively monitor and surveil all of the different communications on its platform.”

Additionally, the proposal encourages the use of machine learning to identify harmful content, stating that “” The Canadian government recently had issues with their use of machine learning technology and facial recognition software, as discussed in .

Looking forward

Given the increasing use of online platforms, the Government of Canada is justified in their efforts to curb online harm. However, a certain skepticism towards government efforts is reasonable, especially in the wake of controversy. Although their efforts to curb online harms are noble, the government must also consider any harms that their efforts may have on Canadians’ privacy.

The post Does the Canadian Online Harms Proposal Increase Privacy Risks? appeared first on IPOsgoode.

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

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

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

FOB’s Decision

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

Facebook’s Response

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

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

Broader Implications for Free Speech on Social Media

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

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

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

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

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

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

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

This data contains personal information specific to each user. Without proper protection, social media companies may mishandle, lose, or leak the data to cybercriminals. Social media companies already widely – and legally – mine customer data for profit-boosting details or sell their information to third parties. To increase protection, governments often develop and enforce stricter regulations.

However, not all countries keep up with consumers’ wants and needs. For example, or protection regulations. Companies in China must obtain consent to interact with their users’ data. However, government officials often block access to sites or monitor how residents use them, raising surveillance concerns. Data privacy rules are further complicated as they vary across platforms.

Social Media Privacy Rules

Registration for any social media site initially requires you to accept their terms and conditions. These conditions detail how the platform will use your data, including your interactions and preferences. Even if your account is “private”, to your information.

No matter how you use social media, you should understand two applicable topics: copyright and how your relationship with a company dictates the way its representatives can collect data. Both of them will likely come up regularly as you learn more about social media privacy — or the lack thereof.

First, copyright is critical for creators and observers. A copyrighted work receives protection once the creator distributes it in a fixed format. For example, posting an original image on social media is enough to . Therefore, users can’t post any picture they find online without permission. Attributing the work is not synonymous with asking the creator for approval.

Most images used legally on the internet fall into several categories:

• Pictures the poster owns and can use how they wish.
• Rights-managed images, which allow people to purchase photos and use them per a specific license. This includes many items offered through the Creative Commons organization.
• Royalty-free images, which enable people to use the pictures in unlimited, multiple and nonexclusive ways.
• Public domain/Creative Commons Zero (CC0) images, which have no restrictions because creators waive their rights under copyright law.

Any original content posted on social media is royalty-free, but social media platforms generally offer users protection against infringement.

Instagram, for instance, provides instructions on on your copyrighted content. This protection means anything you originally create belongs to you, letting you pursue action against any violation of Instagram’s policy. Facebook, the owner of Instagram, has almost identical rules. Twitter may have some exceptions.

It is essential to protect your own data and avoid infringing on others’ original works. However, the second set of rules focuses on your relationship with the platform itself. Historically, data collection has been controversial around the world. Take Facebook, for instance. The big tech company had to clarify after countless scandals emerged. Thus, these instances sparked broader societal discussions about big tech’s growing power and its potential detriment to user privacy.

Personal Data Collection Controversies

Data protection regulation and compliance vary by country. Some territories have federal guidelines in place, like the European Union’s General Data Protection Regulation (GDPR).

The United States has no unifying federal law for cybersecurity compliance. However, the posts its own guidance, alongside each state’s own compliance rules.

Each set of regulations aims to ensure that tech companies protect consumer data and provide users with the correct rights. Unfortunately, despite these laws, data collection controversies continue to arise. Companies find loopholes and use the data in questionable ways. Facebook is notorious for attracting bad press, whether related to misinformation, social justice, or individual rights.

Another example is WhatsApp. After Facebook acquired WhatsApp, the messaging platform updated its conditions to indicate that the platforms would automatically link datasets. Facebook could then use this data for marketing purposes. The EU for violating the law and misleading users.

Facebook again found itself at the center of a data-centric legal case at the end of 2020. This time, the big tech company pursued an action against two smaller companies that it , or taking data from another source for their own use. While Facebook was not the accused, this case again raises the question of big tech’s power and responsibility.

TikTok has also received public and government backlash. After the platform grew exponentially, U.S. officials became wary of due to its Chinese ownership. They were mainly concerned about what TikTok might do with the data it gathered, raising possible national security threats to the United States. However, in September 2020, a deal split TikTok’s ownership between China and the U.S.

Moving forward, countries must re-examine how social media companies use data. Though individuals can take legal action against offending corporations in court, these companies often overpower them, meaning the government must step in. For example, Canada’s Privacy Commissioner can investigate how public and private-sector organizations handle data. They also try to resolve disputes through mediation, negotiation and reconciliation.

Changing Priorities

In the United States, the lack of an overarching federal cybersecurity compliance law has left a legal gap. The California Consumer Privacy Act (CCPA) is a good U.S.-based example that the government should follow. It gives a person the right to access all the information a company has about them or ask that it delete their details. Consumers can also request that companies do not sell their data to third parties or find out which categories of businesses have content about them.

Elsewhere, the GDPR has not effectively maintained these platforms as honest with users about data collection and usage as legislators may have hoped. A 2020 study of central government data protection officers in the United Kingdom found that many of them to deal with the growing number of data protection requests.

Once the GDPR came into effect, internet users were bombarded with cookie preferences windows that let them specify what data companies collected about their internet visit. Many clicked “I accept” without reading the specifics because they were impatient to view the websites in question.

Amidst all the controversies, priorities are changing. People want more security and privacy when using social media services provided by bigger companies. As the U.S. government continues to debate regulations around big tech brands, data collection will continue.

However, data collection can benefits consumers. Social media companies can curate enjoyable, personalized experiences for each user. Issues occur when companies mishandle data or overstep their boundaries. As seen with Facebook, this happens all too frequently.

Since many of the biggest social media companies are U.S.-based, calls for stricter regulation often fall on the United States, in the hopes that consumers will feel more comfortable sharing their data online.

Written by Shannon Flynn, IPilogue Contributor and law technology writer discussing topics such as AI, media, and commercial law.

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THE FEDERAL TRADE COMMISSION

The FTC works towards protecting consumers and competition through preventing anticompetitive, deceptive and unfair business practices. Over the years, the FTC has noted the potential issues arising from the and testimonials in advertising. In early 2017, the FTC sent out to celebrities, athletes, brands, and other prominent social media figures reminding them of the necessity to clearly disclose any relationship that is present when promoting products online. These letters outlined any significant mistakes the influencers were making in disclosing their social media partnership, such as including #ad below the “more” button, hiding any sponsorship-related disclosure in a large number of hashtags, and using abbreviations that may not directly indicate to the consumer that the post is in fact sponsored (such as #spon). The FTC also issued an with respect to endorsement guides. Two years later, the FTC continues to have issues with influencers’ disclosure of associations with brands and products.

RECENTLY PUBLISHED GUIDANCE ON INFLUENCER MARKETING

Recently, the FTC published a for social media influencers regarding disclosure of their online advertisements and sponsored posts. This guidance makes it clear that any financial, employment, personal, or family relationship with a brand must be disclosed on social media. Further, financial relationships are not limited to money. If anything of value was obtained from the relationship, this can trigger the disclosure requirement.

Interestingly, the guidance document also outlines that “tags, likes, pins, and similar ways of showing you like a brand or product” are endorsements. This raises practical questions with respect to how influencers would disclose endorsements when it comes to the casual usage and functions of their social media platforms, such as a “like,” rather than a formal post where captions for disclosure are available.

As has been established in the past, the FTC outlines how influencers and marketers must disclose. Ultimately, the disclosure should be hard to miss, simple and clear, and in the same language as the endorsement itself. Recently, many social media platforms have modified their design to include a around or beside the posted photo. The FTC makes it clear that the platform’s disclosure tool may not be enough and should be used in addition to more traditional forms of clear online disclosure.

A CONTINUOUS CONCERN

With social media platforms continuously changing the functional and design aspects of their applications, maintaining applicable rules with respect to how and when advertisements should be disclosed to consumers remains a difficult task. Influencers will continue to utilize grey-area or borderline methods of disclosure in order to ensure that their posts appear authentic to their followers, which will continue to create different sets of circumstances and considerations for the FTC to evaluate with respect to disclosure.

Written by Alessia Monastero, IPilogue editor and articling student at Deeth Williams Wall LLP.

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Freelance authors are on the rise. According to a 2017 survey, 50.9% of the US population will be freelancing in ten years if the current trend continues.[1] With the rise in freelancers, there are growing concerns about freelancer rights and the bargaining power of large media publishers. Professor D’Agostino has done extensive research in this area and in her book titled, “Copyright, Contracts, Creators: New Media, New Rules” she sheds insight on this issue by focusing primarily on freelancers in the newspaper and magazine industries.[2] Her insight equally applies to other content industries, such as photography, where photos are increasingly created and shared in the digital world.

Professor D’Agostino mentions that granting exploitation rights to owners of original works is one of the key objectives of copyright law.[3] Yet, it seems like social media platforms such as Instagram and Facebook are essentially granting themselves broad licences via their terms and conditions. Professor D’Agostino reiterates this point when she says, “The current proliferation of digital technologies expands the publisher’s powers and puts the supposed objectives of copyright law under strain.”[4] At first glance, it might seem like social media is a solution to this problem by giving users the opportunity to post images and, depending on their follower base, have the opportunity to make money for each post. A freelancer’s dream, right? Not exactly. It turns out that Facebook and Instagram’s terms and conditions contain that scary licence provision that not many users know about.

Terms and Conditions: A Mandatory Licence

It seems as though social media platforms are a good example of the need to raise awareness of the non-exclusive licence. Take Instagram, for example, their terms and conditions include the following:

“… you hereby grant to Instagram a non-exclusive, fully paid and royalty-free, worldwide, limited license to use, modify, delete from, add to, publicly perform, publicly display, reproduce and translate such Content, including without limitation distributing part or all of the Site in any media formats through any media channels, except Content not shared publicly ("private") will not be distributed outside the Instagram Services.”[5]

It begs the question, why would Instagram need to modify a post, add to it, or distribute it on another media channel? One can understand why public performance is required given that Instagram is a platform whereby it gives creators the means to display their content on a global scale. Yet, with social media influencers making thousands per post, the fact that Instagram can modify it and display it in any media formats through any media channels seems problematic when content creators want to be able to still have control over the content that is providing them income.

Facebook’s terms and services include the following:

“… you grant us a non-exclusive, transferable, sub-licensable, royalty-free, and worldwide license to host, use, distribute, modify, run, copy, publicly perform or display, translate, and create derivative works of your content (consistent with your privacy and application settings).”[6]

This is an another example of a broad licence, with the main concern being the lack of control over the distribution of the content. Ultimately, this may be the risk users need to take when displaying content over social media.

The Price Creators Pay

All in all, although these broad licences seem scary they are the reality of the digital age. These social media platforms definitely need a licence to carry out their intended functions, but do they need to be this broad? One can only imagine a situation where Facebook creates a derivative work using one of your photos. Much like freelance journalists are vulnerable to publishers as independent contractors[7], users of Instagram and Facebook that post content are vulnerable to the social media powerhouses. Although there is no monetary price to post their content, they pay with a licence.

If, by chance, a user does read the Instagram terms and conditions in their entirety and decides they do not want to grant such a licence, they are free to not engage with the platform. The tradeoff is that they might miss out on potential profits and global exposure. A solution? Creators may wish to resort to a private website platform, but there is no guarantee that they will not require a similar type of licence. Until protective measures such as legislation or case law come to the rescue, to move forward in the digital age, creators will have to be prepared to hand out licences along the way.

Written by Lauren Chypyha, JD Candidate 2020, enrolled in Professors D’Agostino and Vaver 2019/2020 IP & Technology Law Intensive Program at Osgoode Hall Law School. As part of the course requirements, students were asked to write a blog on a topic of their choice.

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[1] Elaine Pofeldt, “Are We Ready For A Workforce That is 50% Freelance” (17 October 2017), online: Forbes

<https://www.forbes.com/sites/elainepofeldt/2017/10/17/are-we-ready-for-a-workforce-that-is-50-freelance/#326099fe3f82>.

[2] Giuseppina D’Agostino, Copyright, Contracts, Creators: New Media, New Rules (Cheltenham: Edward Elgar Publishing Limited, 2010).

[3] Ibid at 16.

[4] Ibid at 3.

[5] Instagram, “Terms of Use” (19 January 2013), online: Instagram

<https://www.instagram.com/about/legal/terms/before-january-19-2013/>.

[6] Facebook, “Terms of Service” (31 July 2019), online: Facebook < https://www.facebook.com/terms.php>

[7] D’Agostino, supra note 2 at 8.

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The General Data Protection Plan (“”) is a regulation on data protection and privacy for all individuals within the European Union and the European Economic Area, made by European Parliament and Council of the European Union in April 2016 and implemented recently in May 2018. Prior to its enactment, it was sufficient for an organization to obtain a consumer’s “implied consent” to the organizations data practices. In essence, implied consent means that by visiting a website or downloading an app, a consumer is implicitly agreeing to everything in the organizations Terms and Conditions agreement, including the fine print that no one has read. However, under the GDPR, a company needs to gain explicit consent for all the things it wants to do with an individual’s personal data, or Personally Identifiable Information (“PII”).

One simple way for individuals to control their data is blocking cookies from running on websites via web browser settings. However, blocking cookies decreases the convenience of web browsing, since cookies allow our favourite sites and apps to remember our online history, such as billing and shipping information. Generally, users would not expect that companies use their PII in ways that they do not agree with, such as political lobbying or insurance telemarketing. Users also think that they have the ultimate control of the their PII, enjoying the right to revise, remove or duplicate the data.

You may think that deleting Facebook posts would mean “permanently” deleting them from Facebook pages, remote servers and all possible storage facilities but in reality that is not the case: the deleted posts may just magically re-appear on your timeline page. ��In��, Max Schrems, an Austrian law student brought a class action suit against the Irish Data Protection Commissioner, in which he asserted that the commission should have taken more substantial action when he filed a complaint against Facebook for how they handled his data. In January 2018, Europe’s highest court ruled in favor of the U.S. tech company: Schrems cannot bring a class action lawsuit on behalf of others because each individual, which had a specific contract with Facebook, must file a separate legal case. Although each individual user has the right to personally sue the company for the alleged misuse of PII, the unequal bargaining power between the individual and powerful companies like Facebook will make him a vulnerable target and unable to effectively defend his privacy rights. Shortly after the GDPR coming into effect on 25 May 2018, Schrems filed suit in Ireland against Google and Facebook for coercing their users into accepting their data collection policies.

��is a recent Supreme Court of Canada (“SCC”) case that touched on the same issue of “unequal bargaining power”. ��Deborah Douez claimed that Facebook violated s.3(2) of��British Columbia’s Privacy Act��RSBC 1996 c 373, after the site used her image without her consent for promotional purposes. However, the legal issue considered by the SCC was not privacy infringement, but rather whether the forum selection clause in the consumer contract of adhesion that Ms Douez “signed” is enforceable. This forum selection clause stated that any claim against Facebook must only be pursued in California, irrespective of the user’s geographic location. In a narrow 4-3 decision, the SCC overturned the British Columbia Court of Appeal’s decision and modified the application of the��Pompey��test for enforceability of forum selection clauses. The majority held that the court should consider public policy considerations related to “gross inequality of bargaining power between the parties and the nature of the rights at stake”. As a result, the British Columbia Supreme Court decision certifying the class action was restored.

The new GDPR rules apply to any organization that has customers in the EU, regardless of whether the organization is based in Europe. An organization that does not comply with the GDPR may be subject to fines of up to��, whichever is higher. Unsurprisingly, both���� Click����for a list of some of the GDPR’s notable Articles regarding individuals’ rights over their data.

Ultimately, the implementation of GDPR requires companies to take quick actions, such as adopting and integrating new tools and systems to allow individuals to access, delete, update, share, or control the way that their PII is used. Additionally, an organization may ��want to sit down with legal counsel to decide if its marketing endeavors and advertising partners are GDPR compliant.

Does GDPR only protect EU citizens or residents? Not necessary. Both Recital 2 and Recital 14 state that the protection should apply to natural persons “whatever their nationality or place of residence”. Recital 22 and Article 3 mention that the regulation applies to the processing of personal data in the context of the activities of an establishment of a controller or processor in the Union “regardless of whether the processing itself takes place within the Union”.�� For example, if a Canadian citizen residing in Toronto places an online order from an e-commerce merchant established in EU and the website collects personal information, then GDPR applies. ��Less than a month before tough new GDPR rules take effect, Facebook changed its terms of service to move users in Asia, Africa, and Latin America under Facebook Inc. in Menlo Park, rather than Facebook Ireland.��. Although Stephen Deadman, Facebook’s deputy chief global privacy officer, said that “”, EU users arguably enjoy greater data protection rights under the GDPR than their non-EU counterparts.

Grace Wang is an IPilogue Editor and a JD candidate at Osgoode Hall Law School.

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The first panelist to speak, Professor of the University of Calgary, laid the groundwork for why online defamation is an area of law that needs an overhaul. First, she noted that Facebook alone receives over 2 million defamation-related complaints per week, almost all of them requesting only a removal of the content. This means we are dealing with a high volume of low cost cases and this does not reflect traditional courtroom lawsuits that are generally centered on financial damages and thus can be worth the litigation cost. Second, the question of jurisdiction remains unclear, as defamatory statements made online do not easily fall into a single jurisdiction when the interaction is online and crosses provincial or national borders. Third, claimants do not have simple options to resolve their claims. Currently, claimants can complain to the service provider (if the defamatory statement was made on a social media service) or sue in court. Professor Laidlaw pointed out the shortcomings of both options and why there needs to be a new alternative.

The first option places control of the dispute in the hands of private companies like Facebook and Twitter who have their own terms and conditions that define the rights of the parties. This lacks the legitimacy, due process, and standardization that a dispute resolution framework needs to be effectively operate. The second option means expensive litigation over jurisdiction to bring the action and then to obtain an injunction. Furthermore, Prof. Laidlaw pointed out that most claimants just want a comment deleted from the internet, not damages, and the cost of bringing the claim in court is disproportionately large.

The second panelist, Professor , Director of the US National Center for Technology and Dispute Resolution, spoke of measures that some large companies have employed to resolve high volumes of small online defamation claims. For example, companies like Alibaba and eBay have implemented ODR technology that resolves 80-90% of complaints between buyers and sellers through automated processes. This leads to enormous savings of time and cost, as Alibaba and eBay alone receive 100 million and 80 million such claims, respectively, each year.

Since online defamation disputes can be resolved through automated online processes, Professor Katsh’s discussion focused on how these disputes can be prevented through ODR technology. He pointed out that online defamation is not the only area that ODR can be effective, and that the legal world should be more focused on implementing ODR in disputes that do not require substantive legal analysis and judgement.

For example, Prof. Katsh pointed out that mediation is about controlling the interaction between two parties without imposing a final decision, a process perfectly suited to computers through automated messaging applications. Another area is when online platforms do not verify the accuracy of users’ identities, which can lead to defamation claims based on comments that were made by an avatar, a robot, or people misrepresenting themselves. Computer programs can verify the accuracy of records, which filters out claims against bots and other non-human online interactions.

Finally , a lawyer for the BC Government and adjunct professor at Osgoode and UVic, spoke about the newly launched (“CRT”) in BC: an online tribunal that resolves small claims and condominium disputes through an automated mediation process. While the CRT is not available for online defamation disputes, it is a model for future ODR technologies in other areas of the law. The CRT seeks to achieve the same efficiencies that private companies like Alibaba and eBay have achieved by resolving most disputes without any human interaction. The CRT features a diagnosis and self-help portal that helps claimants categorize the type of claim they wish to make and what their options are, followed by an online monitored chat where parties can exchange communication and attempt to reach a settlement. If a settlement cannot be reached, lawyers for the BC Ministry will intervene and adjudicate the matter.

The panel discussion shows there are ODR regimes in place that are effectively reducing the stress on the justice system in areas where the nature of the dispute does not involve significant financial or criminal risk. Online defamation claims fit the ODR model well because they tend to be equitable claims for a deletion of a defamatory comment, not a claim for damages.

At the same time, there are unresolved questions: Would ODR be mandatory or optional? What if there are many claimants launching a class action against a single individual? What if the system crashes? Even if the defamatory comment is taken down, what if it has already been copied and re-posted? Notwithstanding these concerns, online defamation consists of a staggering multitude of small claims. Imposing a simple automated solution to resolving these disputes would be a cost-effective way to reduce some stress on the justice system and make the internet a more civil place.

Roger Angus is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.

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The panel on “Responsibility for Defamation and the Problem of Intermediaries” tackled the issue of liability of internet service providers (“ISPs”) for disseminating or maintaining defamatory content online. Scholarly and industry-savvy panelists grappled with traditional concepts and doctrines in an attempt to formulate a new theory of responsibility for ISPs. Three routes were proposed by the panelists: (1) ad hoc inquiries into fair balance, (2) adoption of the least invasive means and proportionate measures; and (3) revamping the publication rule.

No one is certain that these efforts will resolve the problem of online intermediaries, so looking to the courts’ current take on the matter may hint at additional existing routes and at the likelihood of success of the efforts proposed by the panelists.

Fair Balance

, lecturer at the University of Cambridge, discussed the different notice regimes applicable to ISPs in relation to uploading and downloading content of a user. A novel system of “notice-and-fair-balance” was proposed with a view to reconcile fundamental rights of the different the stakeholders in the triadic relationship between the injured party, the intermediary, and the internet user. The panelist argued that freedom of expression, the right to communicate and to conduct a business, as well as reputational rights, are of equal caliber and should co-exist alongside each other, without a priori recognition that one trumps the other. A desirable solution, she noted, is to conduct ad hoc inquiries into what, in the particular circumstances, represents a fair balance between rights and compromises.

Regardless of the speaker’s endeavor to shed light on what fair balance might mean and how it can be conceptualized, she conceded that striking a balance is easier said than done and that it is most often seen as an empty slogan unlikely to provide real solutions. The current position of North American courts on online intermediaries’ liability (see and ) in fact implies that courts are looking beyond fair balance in these circumstances; their primary goal, instead, is preventing multiplication of wrongdoing on the internet.

Proportionality

Bram Abramson, Open Web Fellow with the Mozilla foundation, pointed that the traditional innocent dissemination doctrine underlying the liability regime applicable to ISPs still leaves constitutional questions unaddressed. To some degree, there is still a restraint on the ISPs’ ability to communicate freely, disseminate information, and carry on business, because the system subdues ISPs to liability unless they take down content upon notice. This, Bram argued, does not represent the least invasive means to remediate the dissemination of defamatory content, as a chilling effect is almost certain in these circumstances and is an incentive to removing content to avoid exposure to liability. Engaging proportionality may thus keep ISPs from bearing responsibility for defamation when other efficient and least invasive measures are available. In this context, the creation of a regulatory framework that allows the ISPs to act autonomously without the involvement of authorities, as well as other mechanisms for online dispute resolution, seem reasonable routes to follow.

This view, however, is not aligned with the current take of North American courts in regard to online intermediaries’ liability. Although free expression may seem compromised in some instances, Canadian and American courts agree that sustaining freedom of expression values of unlawful acts on the internet. As with the use of , the courts appear to have signalled an intent to create a “duty to assist” a person wronged with no resort other than relying on non-parties who are not themselves guilty of wrongdoing. As explained in fullness , a principled rationale for granting orders against intermediaries seems to be needed to bring the rule of law to bear on the Internet to rein in illegal activity, to remediate wrongful actions taken under the cloak of anonymity, and to enforce ignored takedown requests and orders (more ).

As to the creation of more proportionate means of dispute resolution, there seems to be no restriction imposed by the courts on autonomous mechanisms for more efficient responses.

Revamping the Publication Rule

The breadth of activity captured by the traditional publication rule, as Professor of the University of New Brunswick noted, is too vast, capturing even the narrowest scope of ISPs’ activities in linking or highlighting defamatory content. As a result, she argues that a new theory is necessary so that ISPs are not easily liable as defamers when they never created defamatory content. Professor Young proposed that the new concept of publication encompass a knowing involvement in publishing the relevant words (per ; ).

Re-conceptualizing publication, however, does not seem to resolve the problem of online intermediaries either. To the extent that the courts have signalled that their primary goal is to prevent further dissemination of illegalities in general in the internet space, the determination of who to attribute blameworthiness to loses relevance where a multitude of actors may be involved. As a result, whether or not ISPs can be deemed publishers in a strict sense will unlikely interfere in how ISPs should be engaged in halting defamatory content in the internet.

The Bottom Line

In Canada, Equustek brought about a fundamental shift in the parameters of the debate around online intermediaries liability. As a result, traditional concerns involving notice regimes, the breadth of the concept of publication, and the doctrine of innocent dissemination became less relevant. Equustek signals, in broad strokes, that the courts are unlikely to allow actors to avoid the rule of law in the internet space. This approach does not require intermediaries to decide which content is defamatory but it does engage ISPs in a duty to assist a wronged party in response to harm caused by unreachable wrongdoers. The decision may be unpalatable for advocates of free expression and unrestrained right to communicate. However, it represents the courts’ view on how to rein in illegal activity in the context of fast-moving and far-reaching developments in technology and social values. This view might be worth considering when we think about reform of defamation laws.

Bruna D. Kalinoski is a contributing editor for the IPilogue and holds an LLM from the Osgoode Professional Development Program at 91��ɫ.

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