The Google decision – lessons to learn for future cyber-speech litigants: Google Inc. v. Equustek Solutions Inc., 2017 SCC 34

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.

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Does the demise of the press present a constitutional issue for our democracy?

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.

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Election 2015 – our constitution at work…

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.

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How technology and freedom of expression are inextricably intertwined – and how the iRevolution takes it another step further

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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.

This post is another in the series of posts in which I have explored the new Internet Age realities that exist for freedom of expression (for the other posts see “Freedom of expression and copyright in the Internet – The new realities of a cyberspace inhabited by copycats” (January 24, 2014), “The Internet Turns 25 Years Old – the Courts and the World Wide Web” (March 19, 2014) and, “The iRevolution revisited: when you share, are you expressing?” (November 13, 2014). In this blog post, I advance the thesis that the protection of freedom of expression must include not only the protection of the things expressed but the modalities and, specifically the technological modalities, by which human expression is transmitted and received.

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Je suis Charlie….

The recent attack on the Paris offices of Charlie Hebdo, a French magazine known for its cutting political satire, by militant jihadists on January 7, 2015 leaving a dozen dead and another dozen wounded has underscored the need for all those who value freedom of speech, freedom of the press and freedom of thought, conscience and opinion to stand up and be counted.
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The iRevolution revisited: when you share, are you expressing?

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Speakers’ Corner, London, United Kingdom, October 25, 2014 (taken by Arthur Grant)

For over 150 years, people have come to Speakers’ Corner in Hyde Park, London, for the debates. Some come to speak. Others come to heckle. And others just listen and observe. A couple of weeks ago, I ended walking to Speakers’ Corner and listening with great interest to the “debates”. Some of the debates were about religious issues. Some were about immigration. Others seemed to be about nothing at all. It was fascinating to watch this all unfold, this fundamental exercise of freedom of expression.  As important as the speakers are the hecklers – described by one of the placards to the Corner as “essential to the dynamics of Speakers’ Corner”. I would also argue that equally important were the observers – those who stood and watched much like me, not saying anything but listening to the cut and thrust of the debates and simply taking in the mood of the crowds.

Speakers’ Corner is an important manifestation of the exercise of free speech. Its origins date to the mid-19th century – some date it even earlier than that. It is a reflection of a time when oral debates – heard and seen by many people – were a means of addressing matters of public interest. The world has changed dramatically since then.

We now live in a world bound together by radio-communications, by cell phones, televisions, mobile devices, satellite signals and, most prominently, by the Internet. The world has become a much smaller place. We communicate with each other around the world using Skype and FaceTime. We text and email and tweet and exchange documents and photos and videos nearly instantaneously.  The global village exists now.

Part of that global village involves file-sharing. In earlier posts, I spoke about the importance of the iRevolution to society in general and the dawning realization of the judiciary of the importance of the Internet: “The Internet Turns 25 Years Old – the Court and the World Wide Web”. In this post, I want to underscore the fact that by sharing files, whether they be audio-files, video-files, text-files, or software files, we are engaging in the extension of what is Speakers’ Corner. We are engaged in a human exercise of freedom of expression, freedom of speech.

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The unions’ renewed swagger – giving teeth to freedom of association

Wikipedia – Winnipeg General Strike 1919

In 1987, a majority of the Supreme Court of Canada held that “the constitutional guarantee of freedom of association in s. 2(d) of the Canadian Charter of Rights and Freedoms does not include, in the case of a trade union, a guarantee of the right to bargain collectively and the right to strike”: Reference Re Public Service Employee Relations Act (Alta), [1987] 1 SCR 313, per Le Dain J. Then, after testing the waters in some earlier cases, the Supreme Court of Canada reversed this ruling in 2007 in Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, at para. 86:

“We conclude that the protection of collective bargaining under s. 2(d) of the Charter is consistent with and supportive of the values underlying the Charter and the purposes of the Charter as a whole. Recognizing that workers have the right to bargain collectively as part of their freedom to associate reaffirms the values of dignity, personal autonomy, equality and democracy that are inherent in the Charter.”

While the constitutional status of the right to strike is now in doubt, there is no doubt that the courts, with the Supreme Court of Canada leading the way, are resetting the constitutional balance of power between trade unions on one hand and employer (and especially public sector employers) on the other.
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Freedom of expression and copyright in the Internet – The new realities of a cyberspace inhabited by copycats

Printing press - Wikipedia

Printing press – Wikipedia

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.

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Constitutional protection of a collective exercise of freedom of expression: Alberta v. UFCW

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The Supreme Court has now clearly determined that the collective and social exercise of the fundamental freedoms enumerated by the Canadian Charter of Rights and Freedoms is worthy of constitutional protection and scrutiny. This was not always so.

The 1987 trilogy – limiting the scope to that of individual exercise 

In 1987, a trilogy of cases (Reference re Public Service Employee Relations Act (Alberta), [1987] 1 SCR 313, PSAC v. Canada, [1987] 1 SCR 424; RWDSU v. Saskatchewan, [1987] 1 SCR 460] severely limited the scope of the fundamental freedom of association. The Supreme Court ruled in those cases that freedom of association could not encompass the activity of collective bargaining because an individual could not, on his or her own, bargain collectively. The logic was then that freedom of association belonged to individual persons only and that this freedom of association could not be enlarged in scope simply by the individuals acting in concert. Since an individual could not bargain collectively, individuals acting together could not claim that their freedom of association extended to an action that they could not individually carry out. This unfortunate (in my respectful opinion) determination knocked the stuff out of freedom of association for a quarter century.

Dunmore 2001 and the move to undo the tie to individual exercise

Starting in 2001, the Court began to erode away the underpinnings of the 1987 trilogy’s constitutional legacy. In 2001, Bastarche J, speaking for the Court, breathed new life into the s. 2(d) freedom of association. He dispensed with the argument that freedom of association had to be limited to those activities that an individual could conduct individually:

“As I see it, the very notion of “association” recognizes the qualitative differences between individuals and associations. It recognizes that the press differs qualitatively from the journalist, the language community from the language speaker, the union from the worker. In all cases, the community assumes a life of its own and develops needs and priorities that differ from those of its individual members….”

Of interest is the fact that Bastarache J had already started to recognize the communal, collective or social quality of important aspects of the fundamental freedoms (expression, association). In other words, it is not just freedom of association that is important from a collective perspective but also freedom of expression (and logically and necessarily, freedom of religion –though not expressly noted by Bastarache J in the examples given). Indeed, in the example of the press differing qualitatively from the journalist, Bastarache J expressly acknowledges that that aspect of the s. 2(b) freedom has important uniquely collective characteristics. The “press” as it has evolved in its current forms has many collective qualities – from the joint editorship and control over publication to the mass readership and dissemination of the product.

Perhaps, due to Canada’s constitutionalized bilingualism and recognition and protection of collective linguistic and aboriginal rights, the Court had become more accustomed to concept of collectively exercised rights. Maybe this was why Bastarache J. was led to refer to the example of the language community differing from the language speaker.

In any event, certainly by 2001, the Court was leaving behind the rigid philosophy that individual rights and freedoms could have no greater scope than the scope carved out by the exercise of such rights or freedoms by an individual. By the time of Dunmore, the Court was already flagging its inclination to accept that the human condition has certain fundamental components that are communal, social or collective in nature and that fall within the ambit of the constitutionally protected rights and freedoms.

2013 Alberta v. UFCW – the union’s freedom of expression

Enter the Court’s decision in Alberta (Protection of Information and Privacy Commissioner) v.UFCW, 2013 SCC 62 released on November 15, 2013. While many may consider that the importance of this case was the fact that the privacy of the individual was held to be secondary in importance to the union’s interests (which is undoubtedly a matter of great importance), what caught my eye was the Court’s reference to the “union’s freedom of expression”. Justices Abella and Cromwell gave the reasons for judgment for the Court. In the opening paragraph of their reasons for judgment, the Justices explained what issue was being determined in the appeal:

“This appeal requires the Court to determine whether Alberta’s Personal Information Protection Act unjustifiably limits a union’s right to freedom of expression in the context of a lawful strike. At issue is whether the Act achieves a constitutionally acceptable balance between the interests of individuals in controlling the collection, use and disclosure of their personal information and a union’s freedom of expression.”

(emphasis added)

In paragraph 25, the Justices state: “the Act does not include any mechanisms by which a union’s constitiutional right to freedom of expression may be balanced with the interests protected by the legislation” (emphasis added). Later, at paragraph 30, they quote with approval from the International Labour Organization that “[t]he exercise of freedom of association and collective bargaining is dependent on the maintenance of fundamental civil liberties, in particular…. freedom of opinion and expression”: Report of the Director-General: Freedom of association in practice: Lessons learned (2008), para. 34.

Thus, a right that is conferred by the Charter on “everyone” has become a constitutional right of a union, an entity that by its very definition is a collectivity. The express recognition by the Court of the importance of the collective exercise of some of the fundamental freedoms, including freedom of association and freedom of expression has far-reaching implications.

Ramifications and implications

Concepts are not “expressed” in a vacuum. They are expressed by one person to one or more other persons. They are discussed among people in groups in communities, formal and informal. Ideas and concepts and thoughts are shared, shaped, moulded and adapted by individuals and groups of persons, individuals and groups whose membership is constantly shifting. This has always been a core element of human expression. Now the Court has clearly confirmed that it is worthy of constitutional protection.

The significance of this development must be appreciated in the context of the world we now find ourselves in. Marshall McLuhan’s concepts of a global community have been realized through the advent of the Internet and world wide communication systems. The term “Friends” has taken on new significance with communities built on Facebook.  With a click of a computer key, people can share their ideas, their thoughts, their photos, their music, their videos with hundreds or thousands or millions of people. “Viral” used to be something only with negative connotations. Now, if you launch a video that goes viral, that may be a fantastic development.

In a future post, I will outline what I think the ramifications of this “collective”, “social” or “communal” constitutional protection are.  For now, I will say simply that the world is a different place today and the Court apparently is adapting its jurisprudence to reflect that condition.

Until then, I remain

Constitutionally yours

Arthur Grant