Supreme Court of Canada Will Lead Technology Law in 2011

In an interesting piece in today’s Toronto Star, Michael Geist asserts that the Supreme Court of Canada will be the main source of action in Canadian technology law in 2011. This is partially because of the possibility of an election, in which case a number of current bills, on subjects including privacy, copyright and lawful access, will likely die. However, the Court also has a particularly large number of technology cases on its docket this year, which have the potential to have major effects on current Canadian law.

These cases include:

-Masterpiece Inc. v. Alavida Lifestyles Inc., a trademark case that raises questions about the standards for likelihood of confusion between two competing trademarks

-Several cases involving access to government information under the Access to Information Act. They will help determine how far this legislation extends, and will be particularly important in light of rising interest in access to public documents.

-Crookes v. Newton, the most anticipated Internet law decision. This case will determine the potential liability for hyperlinking. There are concerns that given the ubiquitous use of links in e-mails, webpages, and posts on Facebook and Twitter, the possibility of being held legally responsible for the content on the page being linked to could have a chilling effect on Internet speech.

-Black v. Breeden, a lawsuit by former media mogul Conrad Black over postings such as press releases and reports on the website of Hollinger International Inc., his former company, that he argues were defamatory. This case will require the Court to consider the limits of Internet jurisdiction. When Black sued Hollinger’s directors, advisers and one company employee for defamation in Ontario, the defendants brought a motion to dismiss the case on jurisdictional grounds, arguing that the province was not the appropriate forum, since both Hollinger and Black are located in the U.S.  In 2010, Black was successful at the Ontario Court of Appeal, which noted that the press releases on the company’s website specifically provided contact information for Canadian media and that the company “clearly anticipated that the statements would be read by a Canadian audience and invited Canadian media to respond.”

-At least one case that will examine the scope of the fair dealing provision in the Copyright Act. The question in that case is whether “research” within fair dealing can be extended to song previews that are made available on websites such as iTunes. Another possible case concerns copying of educational material in schools.

2011 should be an interesting year for technology law at the Supreme Court of Canada, so stay tuned!