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Category Archives: Social Media

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Nova Scotia introduces new Cyber-bullying Legislation

Posted in Defamation, Social Media

On October 5, 2017, the Nova Scotia Legislature introduced Bill No. 27, the Intimate Images and Cyber-protection Act (the “Cyber-protection Act”, or the “Act”).  The Act comes as Nova Scotia’s previous cyber-bullying legislation, the Cyber-safety Act (“CSA”), was struck down in 2015 by the Nova Scotia Supreme Court on constitutional challenge.

The Cyber-protection Act, like the CSA, is notable for making Nova Scotia the first Canadian province to formalize and adopt cyber-bullying legislation. Similar to its predecessor, the Act proposes to create civil remedies to deter, prevent, and respond to the harms … Continue Reading

Worldwide de-indexing order against Google upheld by Supreme Court of Canada

Posted in Privacy, Social Media, Technology License Agreement

The Supreme Court of Canada released a landmark decision today ruling that Canadian common law courts have the jurisdiction to make global de-indexing orders against search engines like Google. In so, ordering, the Court in Google Inc. v. Equustek Solutions Inc., 2017 SCC 34 underlined the breadth of courts’ jurisdiction to make orders against search engines to stem illegal activities on the Internet including the sale of products manufactured using trade secrets misappropriated from innovative companies.… Continue Reading

Few “likes” for Facebook Forum Selection Clause: Supreme Court Finds “Strong Cause” to Not Enforce Forum Selection Clause

Posted in Class Actions, Litigation, Privacy, Social Media

Electronic terms of service govern billions of relationships worldwide, whether a user is joining a social media service, shopping online or accessing a blog. In each case, a binding contract is formed, the terms of which are usually set out in the website’s “terms of service” . But when a contract is made over the internet and there is later a dispute, whose law governs? What is the “forum” for the resolution of the dispute? What if the contract expressly designates a specific jurisdiction as the appropriate “forum”? In Douez v Facebook, Inc. (“Douez”), the Supreme Court of … Continue Reading

The LinkedIn Lawyers: The Impact of Article 145 of the Code of Professional Conduct of Lawyers on Social Media Use

Posted in Social Media

Unknowingly, many Quebec lawyers may be in breach of ethical obligations regarding Social Media use.

Quebec’s new Code of Professional Conduct of Lawyers (the “Code”) came into force on March 26, 2015 and replaced a previous iteration of the law. Parts of the Code were adapted to the needs of society in an increasingly technological age; however, Article 145, concerning lawyers’ advertising, remained untouched. Article 145 states that: “In his advertising, a lawyer may not use or allow to be used an endorsement or statement of gratitude concerning him.” Its strict application implies that any endorsement, including any posted online, … Continue Reading

BC Privacy Act Does Not Oust Facebook’s Forum Selection Clause: BC Court of Appeal

Posted in Privacy, Social Media

How do operators of global services deal with the panoply of legal systems around the world? One common strategy relies on choice of law and forum selection clauses in Terms of Use agreements. These clauses purport to determine in advance what law will apply to disputes and where they will be heard. Canadian courts tend to enforce such agreements, on the basis that the parties are generally best-placed to decide for themselves how to govern their affairs. Such agreements promote certainty, which courts (and parties) usually finds comforting.

However, local laws sometimes modify or invalidate these kinds of agreements. For … Continue Reading

Bill C-13: Lawful Access and the Relationship Between Organizations, Cyber-bullying and the Protection of Privacy Rights

Posted in E-Commerce, Privacy, Social Media

On December 9, 2014, Bill C-13, An Act to amend the Criminal Code, the Canada Evidence Act, the Competition Act and the Mutual Legal Assistance in Criminal Matters Act (Act) – also known as the Protecting Canadians from Online Crime Act –, received the royal assent. The Act will come into force on March 9, 2015.

The Act deals with the serious issues of online bullying, harassment and non-consensual circulation of intimate images and aims the protection of Canadians from cyber-bullying and other forms of Internet exploitation.

Significant amendment to the Criminal Code

The Act notably brought two … Continue Reading

Social Media and Disclosure in Litigation: Garacci v Ross

Posted in Social Media

Overview

Information disseminated through social media platforms such as Facebook and LinkedIn is of growing utility in litigation matters. Evidence obtained from social media accounts by way of discovery preservation and production orders has significantly strengthened the positions of litigating parties. This should come as no surprise as individuals routinely “post” messages, thoughts, pictures and experiences on these platforms, leaving a wake of evidence in the process.

There has been marked development in this area of law in Canadian jurisprudence. To date, Courts and Tribunals have, among other things, ordered the preservation and production of entire social media accounts, dismissed … Continue Reading

The Right to be Forgotten

Posted in Privacy, Social Media

This past October, the European Parliament’s Committee on Civil Liberties, Justice and Home Affaires (“LIBE”) voted in favour of a major reform of the current European Union (“EU”) data protection regime consisting of the Data Protection Directive, introduced in 1995, and national legislative works existing across EU member states. Intended as a response to privacy concerns in respect of technological developments and recent cases involving mass surveillance, LIBE adopted a proposed General Data Protection Regulation (the “Regulation”), which, once in force, would not only represent a major change in the protection of personal information … Continue Reading

Protecting an Employer’s LinkedIn Network: Whitmar Publications Ltd v Gamage & Ors

Posted in Social Media

Overview

The England and Wales High Court (Chancery Division) recently granted an interlocutory injunction restraining former employees from, among other things, using confidential information gained through the employer’s LinkedIn groups in their new competing business.[1] An employer can use groups on LinkedIn to manage and interact with its employee, customer and supplier networks. As the issue of misappropriation of employer managed LinkedIn networks and materials has not been addressed within Canada as of the date of this blog, this case from the United Kingdom is helpful in determining the application of Canadian law to this new issue and setting … Continue Reading

Making social networks remediate defamation enabled by their platforms: McKeogh v Facebook

Posted in Social Media

Overview

Recently, the Irish High Court came up with a novel solution in a social media defamation case involving an unfortunate young student who was grossly defamed when certain persons wrongly identified him as the man seen in a video posted on YouTube exiting a taxi in Dublin without paying the fare.[1] The decision illustrates the difficulties an innocent person who is defamed on social media can face when trying to have the material removed, particularly where the Internet intermediaries who may have the ability to help refuse to cooperate. In this case the High Court ordered the experts … Continue Reading

Status Update: Social Media and the Service of Documents

Posted in Social Media

State Representative Jeff Leach of Texas recently proposed a bill that has generated significant discussion about the utility of social media in litigation proceedings. The yet untitled bill, HB No. 1989, proposes to allow substituted service in Texas through a social media website if a court finds that the social media account belongs to the defendant, is regularly accessed, and such service is likely to result in actual notice.

Texas is attempting to create with legislation a process that courts in Canada, Australia, New Zealand and the United Kingdom have developed through common law. Generally, courts in these jurisdictions … Continue Reading

Social Media, Disclosure and Securities Regulation

Posted in M&A/Finance, Regulatory Compliance, Social Media

 On July 3, 2012, the CEO of Netflix Inc. did what many of us frequently do: updated his Facebook account. However, he updated his account with a post stating that Netflix viewing “exceeded 1 billion hours” in the month of June. This post was viewable by over 200,000 Facebook fans. Netflix Inc. shares rose 6.2% that day, the largest single day gain in approximately 6 weeks.

Shortly thereafter, the Securities and Exchange Commission (“SEC”) provided Netflix and the CEO with a “Wells Notice”, a notice the SEC provides when it is of the opinion that sufficient wrongdoing has … Continue Reading