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In one of my earlier posts, “Freedom of Expression and the Internet – The new realities of a cyberspace inhabited by copycats” (January 24, 2014), I provided the first installment respecting the relationship between freedom of expression and the courts in the World Wide Web. This is the next post in that series. The Internet is a relatively recent phenomenon but despite its youth, it has reshaped our human environment. After only 25 years, not only has it changed our economies and our social lives but it is penetrating deep into our jurisprudence. One might argue that the courts and the law are institutions that are slow to alter course. That is usually true. But at the level of the highest court in our land, the Internet appears to have seized the imagination of the justices.

Starting as early as 2000 in Global Securities Corp. v. British Columbia (Securities Commission), 2000 SCC 21, the Court recognized the growing significance and power of the Internet. Speaking for the Court, Iacobucci J noted that the Internet was changing how financial transactions were being conducted:

The securities market has been an international one for years: see P. Anisman and P. W. Hogg, “Constitutional Aspects of Federal Securities Legislation”, in Proposals for a Securities Market Law for Canada (1979), vol. 3, 135, at p. 217. However, the Internet has greatly increased the ability of securities traders to extend across borders:

[T]he very qualities that make the Internet a valuable tool for investors and the securities industry may render it a convenient tool to perpetrate securities fraud and other violations. The Internet also provides for instantaneous cross-border communication and interactivity, which challenge traditional notions of jurisdiction and territoriality.

(International Organization of Securities Commissions, Securities Activity on the Internet (September 1998), at p. 3.)

Four years later, the Court was faced again with the extraterritoriality issue that the Internet presented: could Canada extend its jurisdiction over copyright to infringers that may be in whole or in part in another country? Unlike Global Securities which only looked at the Internet tangentially, the case of Society of Composers, Authors and Music Publishers of Canada v. Canadian Society of Internet Providers, 2004 SCC 45, made the Court examine the Internet head on. While the Court ultimately held that Canada’s copyright laws could have extraterritorial application provided there was a “real and substantive connection” between Canada and the communication in question, the Court recognized that the Internet was not just any medium of communication. Justice Binnie gave reasons for the majority (LeBel J dissenting). He noted that “[t]he Internet ‘exists’, notionally, in cyberspace” and that it “has been described as a ‘fascinating exercise in symbiotic anarchy’; see G. S. Takach, Computer Law (2nd ed. 2003), at p. 30.” (para. 2). At para. 40, he stated:

The capacity of the Internet to disseminate “works of the arts and intellect” is one of the great innovations of the information age. Its use should be facilitated rather than discouraged, but this should not be done unfairly at the expense of those who created the works of arts and intellect in the first place.

In 2006, in a case involving the recognition and enforcement of foreign judgments, Deschamps J opened her judgment with the following words:

Modern-day commercial transactions require prompt reactions and effective remedies. The advent of the Internet has heightened the need for appropriate tools. On the one hand, frontiers remain relevant to national identity and jurisdiction, but on the other hand, the globalization of commerce and mobility of both people and assets make them less so. The law and the justice system are servants of society, not the reverse.

Pro-Swing Inc. v. Elta Golf Inc., 2006 SCC 52, at para. 1

The Court examined the importance of hyperlinks, key components for the efficient operation of the Internet, in a defamation case, Crookes v. Newton, 2011 SCC 47. The Court ruled that the defendant had not participated in defamation of the plaintiff simply by including hyperlinks to defamatory material in articles that he had posted on his website. Speaking for the majority, Abella J. underscored the growing importance of the Internet to freedom of expression and the need of the courts to ensure its functionality (at para. 36):

The Internet cannot, in short, provide access to information without hyperlinks. Limiting their usefulness by subjecting them to the traditional publication rule would have the effect of seriously restricting the flow of information and, as a result, freedom of expression. The potential “chill” in how the Internet functions could be devastating, since primary article authors would unlikely want to risk liability for linking to another article over whose changeable content they have no control. Given the core significance of the role of hyperlinking to the Internet, we risk impairing its whole functioning. Strict application of the publication rule in these circumstances would be like trying to fit a square archaic peg into the hexagonal hole of modernity.

Two years ago, the Supreme Court recognized that the use of the Internet in the transmission of a video game containing musical works through the use of an Internet download did not constitute a “communication to the public” under s. 3(1)(f) of the Copyright Act: Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 34. Rather the majority of the Court (per Abella and Modaver JJ) held that the Internet was merely a delivery modality, not a communication per se. In the majority’s view, “[t]he Internet is simply a technological taxi that delivers a durable copy of the same work to the end user” (at para. 5). In a companion decision, however, Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35, the streaming of such works by an communications company to its users did constitute communications to the public: at para. 56.

The Court unanimously recognized the global reach of the Internet when dealing online consumer transactions in Infineon Technologies AG v. Option consommateurs, 2013 SCC 59. In rendering reasons for the Court, LeBel and Wagner JJ observed (at para. 52):

Of course, the Internet transaction is conducted remotely, or virtually, and the “store” is not “in the neighbourhood” in a concrete sense. Nevertheless, given the global reach of the Internet, the online store is, in a way, even closer than a neighbourhood store, as the consumer does not need to leave home to shop.

The jurisprudence being generated by Canada’s highest court respecting the place and importance of the Internet and the manner in which it is affecting Canadian and, indeed, world society is indeed telling. The Court is increasingly cognizant that there is a sea change occurring in our global village. The importance of an open and freely operating Internet is being repeatedly asserted by the Court. Certainly, it is true that the Court has tempered its comments with recognitions of the potentially dark sides of the Internet. But one thing is certain: as the Internet proceeds into its second quarter century of existence, the judiciary is alive to the centrality this “device” – this “invention” – this “tool” now plays in the existence of virtually every resident of Canada and the rest of the planet. How this awareness will play out as the Court wrestles with other tools and components of the Internet will be an interesting study in probably the not-too-distant future.

I remain

Constitutionally yours,

Arthur Grant