Program

New Developments in Communications Law and Policy
November 14-15, 2017
Shaw Centre, Ottawa

Updated November 16, 2017

Tuesday, November 14, 2017

07:00      

Registration Open for Delegate Badge Pick-Up

08:00

Welcome and Opening Remarks
Hank Intven, President, IIC Canada
Grant Buchanan, Partner, McCarthy Tétrault LLP
Laurence Dunbar, Partner, Fasken Martineau DuMoulin LLP

08:30

Keynote Speech (CPAC Podium)
Ian Scott, Chairperson and Chief Executive Officer
Canadian Radio-television and Telecommunications Commission

09:10

Canadian Courts and Internet Jurisdiction
Canadian courts are increasingly asserting jurisdiction over companies without traditional "bricks and mortar" in Canada and issuing orders with extraterritorial effect. What impact will this have on non-Canadian over-the-top (OTT) services available in Canada? This panel will examine how the "real and substantial connection" test has evolved in light of recent caselaw, including the Supreme Court of Canada's (SCC) decisions in Google Inc. v. Equustek Solutions Inc. and Douez v. Facebook, Inc. It will examine the court's jurisdiction to make extraterritorial orders and orders against Internet service providers (ISPs), search engines and other Internet intermediaries and whether choice of laws and forum selection clauses will be upheld in this new environment. It will also examine the potential reaction of courts in other jurisdictions to extraterritorial orders, including Google’s recent injunction application to a U.S. court, arguing that the SCC’s global injunction against Google violates the First Amendment of the U.S. Constitution.

Research Paper: Janet Walker, Professor, Osgoode Hall Law School
Moderator: Peter Ruby, Partner, Goodmans LLP
Panellists:
Barry Sookman, Partner, McCarthy Tétrault LLP
Mark Hayes, Partner, Hayes eLaw LLP
Vivek Krishnamurthy, Clinical Attorney, Harvard Law School

10:25

Networking Break

10:40

Copyright Act Reform: Key Issues for the Five-Year Review
The government will launch its five-year review of the Copyright Modernization Act this fall. In parallel, it is in the throes of renegotiating NAFTA, and copyright issues, particularly related to stronger protections for online content, could well be on the table. Since the Act was amended in 2012, online piracy has remained a force: is the Act’s tool kit sufficient to combat piracy or are stronger measures needed? In addition, Canadian courts have weighed in on the notice and notice regime. Does the Voltage v. John Doe #1 and Rogers (2017 FCA 97) Court of Appeal decision offer a fair assessment of an ISP's responsibilities under the regime, and what are its potential impacts if it is not successfully appealed? Meanwhile, the NAFTA process has also seen U.S. broadcasters calling for compensation from Canadian BDUs for carriage of their signals. Should the Copyright Act be amended to permit retransmission consent in Canada and should U.S. broadcasters similarly be compensated? More generally, the government has launched a consultation on Copyright Board processes and procedures to expedite decisions in a fast-paced environment. What reforms will meet with success? This panel will tackle these issues and more from the perspective of both users and rights holders in an attempt to strike a "balanced" approach.

Research Paper:
Jay Kerr-Wilson, Partner, Fasken Martineau DuMoulin LLP
Kristina Milbourn, Director, Copyright and Broadband, Rogers Communications Canada Inc.
Moderator: Stephen Zolf, Partner, Aird & Berlis LLP
Panellists:
Carys Craig, Associate Dean (Research & Institutional Relations), Associate Professor, Osgoode Hall Law School, York University
David Kent, Partner, McMillan LLP
Erin Finlay, Chief Legal Officer, Canadian Media Producers Association

12:00

Lunch
Keynote Interview (CPAC Public Record)
Brendan Carr, Commissioner, Federal Communications Commission
In conversation with Greg O'Brien, Editor & Publisher, CARTT.CA

13:30

Privacy and Big Data
Communications service providers (CSPs) have access to a broad range of personal information from their users (both subscribers and non-subscribers). The digital information trail of communications services users (from browsing, location and set-top-box data to segmentation created by matching user information with other third party data) can reveal much about the individual's current behaviour and future intentions. This personal information presents both commercial opportunities and privacy responsibilities for CSPs, especially if they seek to monetize the personal information for marketing or other commercial uses. The paper reviews the current notice and consent obligations on CSPs when using personal information in Canada, the European Union and the United States. The paper also explores how notice, consent and their alternatives (such as legitimate business interest and de-identification) are evolving in Canada and how these changes may impact the competitiveness of Canadian CSPs.

Research Paper: Bill Abbott, Privacy and Data Protection Expert
Moderator: Jennifer Stoddart, Regulator Advisor, Nymity; Visiting Scholar, Centre of Genomics and Policy, McGill University
Panellists:
Alex Cameron, Partner, Fasken Martineau DuMoulin LLP
David Fewer, Director, CIPPIC, University of Ottawa
Lisa Austin, Professor, Faculty of Law, University of Toronto

14:50

Networking Break

15:10

Internet Piracy
Internet piracy is a significant social and economic problem. Every year, billions of dollars of creative content is stolen online, causing significant harm to the Canadian creative and broadcasting sectors. Despite extensive efforts by rights holders, Internet piracy has proven particularly resistant to conventional legal action. What makes Internet piracy so difficult to combat? Would blocking access to Internet piracy sites be a proportionate and effective solution to the problem? How have similar regimes been implemented internationally, and what criteria should courts or tribunals employ in making such orders?

Research Paper: Richard Lizius, Associate, McCarthy Tétrault LLP
Moderator: Susan Wheeler, Vice President Regulatory, Media, Rogers Communications Canada Inc.
Panellists:
Ariel Katz, Associate Professor, Innovation Chair--Electronic Commerce, Faculty of Law, University of Toronto
Bram Abramson, Ford-Mozilla Open Web Fellow, The Citizen Lab, University of Toronto
Thomas Sutton, Partner, McCarthy Tétrault LLP

16:30

Cocktail Reception (Cash Bar)

Wednesday, November 15, 2017

08:00

The Impact of New Legal Technologies on the Legal Profession *
It's enough that the profession is under siege by competitors from all sides, but the advance of legal technology, including through the use of artificial intelligence, is resulting in a need for lawyers who are adept at using these new tools to lower costs and improve outputs. Some of those techniques include e-discovery, process automation, legal research, practice management, document storage and handling, and improved billing and accounting practices but despite incentives for lawyers to become more technologically competent it is difficult training (and retraining) them.

Research Paper: Jordan Furlong, Principal, Law21
Moderator:
Gina Alexandris, Senior Director, Law Practice Program, Ryerson University
Panellists:
Laura van Wyngaarden, COO, Diligen
Mathew Goldstein, Associate, Dentons Canada LLP
Monica Goyal, Lawyer and Entrepreneur, Barrister and Solicitor

09:30

Networking Break

09:45

Surveillance and Cyberattacks
News headlines and security leaks show us that government agencies and police have the potential to use consumer devices for surveillance. On the other side of the equation, ransomware, viruses and denial of service attacks are becoming an everyday reality. These issues are the backdrop as the government is re-thinking Bill C-51, and Public Safety Canada is concluding its cyber security consultations. As we enter the age of the "Internet of things" the debates continue surrounding mandatory breach notifications and protecting critical infrastructure. What legal tools should be made available to the government? Who bears the burden of keeping our data and all the devices that our everyday life relies upon safe? What should happen when sensitive information or critical networks have been breached and what could happen when fingers get pointed at network operators, equipment manufacturers or large institutions?

Research Paper: Craig Forcese, Professor, Faculty of Law, University of Ottawa
Moderator: Catherine Beagan Flood, Partner, Blake, Cassels & Graydon LLP
Panellists:
Eugene Ng, Partner, Eastern Canada Cyber Security Leader, MNP LLP
Robert Gordon, Executive Director, Canadian Cyber Threat Exchange
Scott Hutchison, Senior Partner, Henein Hutchison LLP

11:15

Networking Break

11:30

Regulating "Uncivil Discourse” on the Internet: Defamation, Hate Speech, and Fake News *
Not so long ago, the Internet held great promise as an unfettered forum for individuals, groups, businesses, and government to share information and views. Today, there is increasing talk of monitoring, moderating, and even regulating that forum. Lawyers are advising clients and watching their own step at the same time. Online aggression, anonymity, and fake news are social problems. When do they become legal issues, and are we heading for more regulation and more litigation? When do they present ethical dilemmas, and how does a lawyer spot and deal with them? Facing a rush of unverified information, and quick action/reaction cycles of online discourse, how does today's lawyer keep up?

Research Paper: Sheldon Burshtein, Partner, Blake, Cassels & Graydon LLP
Moderator: John D. Gregory, Retired General Counsel, Ontario Ministry of the Attorney-General
Panellists:
Marina Pavlović, Assistant Professor, Centre for Law, Technology and Society, University of Ottawa
Paul Schabas, Partner, Blake, Cassels & Graydon LLP
Edward Greenspon, President & CEO, Public Policy Forum

13:00

Lunch
Keynote Panel on NAFTA
Sarah Goldfeder, Principal, Earnscliffe Strategy Group
Colin Robertson, Senior Advisor, Dentons LLP
In conversation with Hank Intven, President, IIC Canada

14:30

The CRTC's Enforcement Regimes *
The Canadian Radio-television and Telecommunications Commission (CRTC) conducts regulatory enforcement of nuisance communications and spam under the Telecommunications Act and Canada's Anti-spam legislation (CASL). How do these regulatory regimes compare with other regulatory models (such as that of the Competition Bureau and the Federal Trade Commission (FTC) and Federal Communications Commission (FCC) in the United States)? This session will also consider the role of counsel in navigating the rules to help their clients come into compliance and in responding to notices to produce or preserve information during an investigation; and issues such as retaining external legal counsel to identify and sever solicitor-client privileged information during an investigation.

Research Paper: Kelly-Anne Smith and Adam Balkovec, Legal Counsel, CRTC
Moderator: Leslie Milton, Senior Counsel, Regulatory Affairs, Telesat Canada
Panellists:
Andrea Rosen, President and CEO, Andrea Rosen and Associates Inc.
Jonathan Chaplan, Executive Director and Senior General Counsel, Competition Bureau Legal Services
Phillip Marchesiello, Partner, Wilkinson Barker Knauer, LLP

16:00 Closing Remarks

* LSUC Professionalism 3 Hours