A recent decision of the Supreme Court of Canada regarding the Internet giant, Google, has delivered some very important lessons for future litigants in the field of cyber-speech. In Google Inc. v. Equustek Solutions Inc., 2017 SCC 34, the Court has delivered two two principal lessons:
1. If you are going to allege constitutional values or arguments, such as the importance of freedom of expression, ensure that you develop a full evidentiary record in support of your position;
2. The Court may well understand that there is a distinction between those who provide technology such as search engines and those who use it for the purposes of breaking the law.
In today’s Globe and Mail, Lawrence Martin has underscored the “crisis in journalism”. His opinion piece, “A crisis that cries out for a public inquiry”, presents an important question about the state of the “fourth establishment” and its role in democratic government. He describes the root of the problem as follows:
Today, we have a crisis in the journalism industry unprecedented in scope. A media implosion. Newspapers being reduced to digital editions, large numbers losing their jobs, circulation falling, ad revenues plunging, near monopoly ownership of big-city dailies, the old business model in a state of collapse.
He goes on to observe that “it’s a joke to think that a healthy democracy can be restored given the continuing depletion of the one industry that holds business and government to account”. He asks “[i]f traditional print journalism cannot be sustained, what fills the void?” Good question.
On October 19, 2015, Canada goes to the polls. The hurly burly of the Canadian version of democracy has been on display since early August when Prime Minister Stephen Harper asked the Governor General to dissolve Parliament and to call this election. What many of us do not appreciate is that this spectacle is probably one of the best examples of our constitution at work.
Paintings found on wall of Chauvet Cave – made circa 30,000 BCE
Recently, last Friday March 6th in fact, I had the privilege of speaking about freedom of expression to the Association des juristes d’expression française de la Colombie britannique. Normally, I would take my speaking notes and just convert them into a blog post. This is not possible here because first, my notes were “en français” and second, I undoubtedly butchered that otherwise beautiful language. This is part of the reason why there has been a bit of a lull between posts – I have been too busy reactivating old French language brain cells to prepare a new post.
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.
In an earlier post, “Constitutional protection of a collective exercise of freedom of expression: Alberta v UFWA”, I commented on how the Supreme Court of Canada was coming around to understanding the fundamental importance of the exercise of freedom of expression by a collectivity. I also noted that this shift could ultimately have wide-reaching ramifications in the Internet Age.
This post today will be the first instalment of several posts on freedom of expression and the Internet. But let me start by saying that the genie is now out of the bottle and it will not be going back.