Tag Archives: Law

Freedom of revulsion

Hey, remember when the city was considering a ban on ski masks during protests and I called that grossly unconstitutional?

Now the police want a by-law making it illegal to insult police officers.

The “verbal abuse” by-law is still in the “early stages”, which I guess means it hasn’t gotten to the “isn’t this a really stupid idea?” filter yet.

UPDATE: Lagacé also has a raised eyebrow about this.

Nobody reads fine print (except ours, right?)

The Gazette has a Canwest-penned article in today’s paper (complete with adorable photo of Montreal-guy-who-visits-websites) about how people don’t read the fine print when visiting websites and entering into contracts with web companies. It cites their obscene length as a key factor:

In the case of online ticket purchases, if you actually click to read Ticketmaster’s fine print before buying concert tickets, the terms run nearly 6,200 words. It takes far longer to read than the three minutes and 15 seconds Ticketmaster gives you to make a decision to buy tickets.

It also points out that the terms can be abusive to the point of absurdity:

They’re often lengthy and complicated. Sometimes they can be changed unilaterally by the company, and they usually include a limited corporate liability clause.

Readers are encouraged to comment on this article. In order to do that, you have to agree to this 785-word license release, which also requires you to read and agree to this 10,509-word general website terms of service. Both contain an absolute liability waiver, and the latter contains a clause that allows the company to unilaterally change the terms without notice. It also contains gems like these:

  1. Except as provided herein, you agree not to reproduce, make derivative works of, retransmit, distribute, sell, publish, communicate, broadcast or otherwise make available any of the Content obtained through a canada.com Site or any of the Services, including without limitation, by caching, framing, deep-linking or similar means, without the prior written consent of the respective copyright owner of such Content.
  2. You shall not have any right to terminate the permissions granted herein, nor to seek, obtain, or enforce any injunctive or other equitable relief against canada.com, all of which such rights are hereby expressly and irrevocably waived by you in favour of canada.com.
  3. You acknowledge having obtained independent legal advice in connection with this license, release and waiver, failing which, you shall be deemed to have voluntarily waived the right to seek such independent legal advice.

Don’t let it be said my bosses don’t have a sense of humour.

(By submitting a comment to this blog post, you hereby agree that Fagstein is awesome.)

It’s all fun and games until a kid goes missing

By now you’ve probably heard about the Mike Ward OMGSCANDAL. Basically he made an off-colour joke about Cédrika Provencher in a bit about Revenu Québec. (There was a video on YouTube, but it’s been pulled because of that minor pesky copyright thing that bloggers think doesn’t apply to videos posted on YouTube.)

Today… (err, yesterday), Ward posted a video on his website responding to the OMGontroversy (via The Domster). There, he lambasts people who haven’t seen his show for suddenly having a problem with it a month later, and talks about how he’s being judged by random people on the street, getting death threats and is too afraid to start his car.

Now’s about a good time to remind people what the limits are on free speech:

  1. Making a tasteless joke about a missing girl is legal and acceptable, no matter how offensive or unfunny it is. Especially at a show made specifically for offensive humour.
  2. Criticizing said joke is legal and acceptable, no matter how unfair or harsh the criticism is, and it’s not censorship to criticize something.
  3. Criticizing something without knowing the context is legal and acceptable, no matter how uninformed that criticism is or how much it hurts someone’s feelings.
  4. Whining on your blog that people are judging you is legal and acceptable, no matter how pathetic it makes you look. It is also not censorship to do this.
  5. Making death threats based on a bad joke is not legal and is unacceptable, no matter how offensive the joke is or how much you care about this little girl you’ve never met and been told by the media to care about. Ditto for stalking a guy outside his house and suggesting that harm should come to him.

Leave Mike Ward alone. Comedians don’t change based on criticism, they change based on people not laughing at their jokes and not paying attention to them.

(P.S. Speaking about criticizing criticisms, Claude Poirier totally goes ape-shit on Bazzo (from Mike Ward’s blog))

Lessons on plagiarism

Torontoist (via Regret the Error) talks about a Toronto blogger and Flickrite who had photos of his used on Citytv’s CP24 news network without permission, credit or compensation, and has finally received vindication in the form of a Canadian Broadcast Standards Council ruling in his favour.

This kind of thing, sadly, is nothing new. Last year I mentioned TVA using a photo from Taxi de nuit’s Pierre-Léon, similarly stolen from his Flickr page. There was also blogger Julie Bélanger, who had a photo of hers taken from her Flickr page and used in Quebecor’s 24 Heures.

I think there are lessons to be learned from this, not just for traditional media, but for bloggers as well, about using other people’s content without permission.

In many blogs I subscribe to, I often see photos used to illustrate posts. That’s usually a good idea, because photos attract attention, and they can show things clearly that words sometimes can’t.

But in most of those cases, the photos weren’t taken by the blogger. They might have been taken by a wire service like Canadian Press or Getty Images, or by a local newspaper, or by some random person on Flickr.

And very often (almost universally for professional photos), they are used without permission.

The problem comes, I think, because of a misunderstanding of “fair use” or “fair dealing” provisions of copyright law (assuming the infringer cares about copyright to begin with — some clearly don’t). These are exceptions to copyright law for things like academic study, criticism and parody.

For example, if I wanted to criticize a Hollywood movie, I would be within my rights to use an excerpt from that movie to do so. Or if I was writing a news article about a work of art, I could print a photo of it beside the article.

But many people misunderstand the exception, and assume that they can just slap on any wire service or Flickr photo to illustrate any story, even if the story is not about the photo.

The excuses used for this, by professional and amateur media moguls alike, include:

  • It was free (gratis) online, therefore it’s free (as in freedom) to use
  • My site is non-commercial
  • It’s used to illustrate a news article
  • There was no alternative
  • I used a small-resolution version

Neither of these, by themselves, or together, justify copyright infringement. They may be mitigating factors, but they are not criteria for fair use.

The last excuse, used more by bloggers who think they’re doing the right thing, is that the photo is credited, and therefore there’s no infringement.

This unwritten policy seems to have come out of increasingly popular copyleft licenses used by people to encourage the spreading of their work. There’s an assumption that everyone on the Internet uses such licenses, which allow the free use of material provided it is credited. Not all blogs, nor all photos on Flickr, use copyleft licenses. And even those who do have different clauses which allow for different things.

In the absence of a copyleft (or other) license, all rights are reserved, and that means you need to get permission before using other people’s work.

In most cases, that permission is given freely. But you still need to ask.

Journalism died today

OK, maybe I’m being a bit over-dramatic. But if you’re considering leaking a document anonymously to the media, confident that you’ve been promised your name will be kept secret by the journalist, think again.

Today, the National Post lost an appeal which pitted confidentiality of sources against the interests of law enforcement. And the court has ordered the Post to reveal the identity of an anonymous source.

The case stems from the Shawinigate controversy (I’m not a fan of “-gate” terms, but this one just rolls off the tongue, doesn’t it?), in which then-prime minister Jean Chrétien had apparently helped to secure a generous loan for a hotel in his home riding, next to a golf course he technically still had a financial interest in.

Specifically, the case concerns a document received by Post reporter Andrew McIntosh, which appeared to be a loan application from the hotel. McIntosh gave his source a guarantee of anonymity in exchange for the document. But when he attempted to verify it with the bank, the bank declared it to be a forgery and began an investigation.

That investigation led to a court order for the Post to produce the document and the envelope it came in. The Crown wanted to determine the identity of the alleged forger and potentially file charges.

But (according to McIntosh) the source of the document claims he received it anonymously through the mail (hence McIntosh’s need to authenticate it), so if this is true the source would not have been the forger.

The ruling by the Ontario court of appeal argues that the interest of law enforcement to investigate a forgery intended to bring down a sitting prime minister outweighs the Post’s need to protect its sources.

In it, the court agrees with the Crown that the documents themselves are important evidence, and that the leak itself is the crime they’re investigating. Insert reference to the Valerie Plame scandal here, which also wasn’t very friendly to the media’s anonymous sources.

A key phrase comes in para. 75:

(Section 2(b) of the Charter, which guarantees freedom of the press) does not guarantee that journalists have an automatic right to protect the confidentiality of their sources.

Similarly, in para. 79:

The journalist-confidential source relationship is not protected by a class privilege. However […] the confidentiality of the relationship between a journalist and the journalist’s source may be protected on a case-by-case basis.

In para. 94:

Journalists can never guarantee confidentiality. There will be some cases – and this is one of them – where the privilege cannot be recognized. Refusing to recognize the privilege in appropriate cases will not, in our view, cause media sources to “dry-up”.

Nice to see the court is so confident. But to me, this ruling seems to say that a journalist can be forced to give me up if there’s a reasonable belief (whether it’s true or not) that knowing my identity may be important to the police investigating a crime.

Considering how many confidential leaks involve some issues of legality, I could certainly see more people clamming up about important issues of public interest in the belief that they could be prosecuted, fired or otherwise be punished for bringing it to light.

Confidential sources are confidential, except when the government decides it wants to know.

The judgment also includes a dig at new media* includes an argument from the Crown which suggests that new media journalists aren’t journalists, in para. 98:

[The Crown submits that …] Today, many persons, especially by using the internet, may be called “journalists” or “the press” because they disseminate information to the public, yet may not merit the journalist-confidential source privilege.

We reject the Crown’s first contention.  The case-by-case approach to privilege does not require us to establish the boundaries of legitimate journalism.

So feel free to ignore what I’m saying here. Because according to the Ontario court of appeal, I’m probably not a journalist.*

*I totally misread the judgment originally and read a summary of the Crown’s argument as the judgment of the court. My apologies.



A New Brunswick TV personality has failed in his “looking at child porn online for research” excuse and found guilty of being icky.

Though I don’t particularly believe his story (after all, how much can you learn about child porn just by looking at it?), it makes me wonder if there should be an exception in these kinds of laws for journalists with legitmate interest, and if so whether laws should even exist in the first place that restrict what information we can expose ourselves to.

Should looking at dirty pictures be illegal? And if so, where does one draw the line? Am I breaking the law if I watch a Tatu video?

SOS Ticket expanding its ethically-questionable services

S.O.S. Ticket, the service setup by former Montreal police officer Alfredo Munioz to help people defend traffic tickets, has launched a new service. For 50 cents per message, drivers can subscribe to a radar trap alert service, which will notify them by text message when and where police officers are checking people for speeding.

The service says they find this out through the use of “road agents” (spies) who look around for them and report them.

Aside from the inherent problems essentially keeping track of every police car in the city and every SQ vehicle on the highway, there are serious ethical implications as well. Defending people in court is one thing. Helping them to (essentially) avoid police while committing a road infraction seems a bit more serious.

Not to mention that it encourages people to speed.

CRTC looking at eliminating top-40 radio restrictions

In one of those “we have a law for that?” moments, the CRTC has decided to (again) take a look at a rather archaic regulation they have that limits FM radio stations on the use of “top 40 hits.”

The regulation was created to protect AM Top 40 stations from the FM Radio Menace that sought to kill them off with their better sound. Sure enough, now AM stations are disappearing, being replaced with talk radio, all-news stations, all-sports stations and some community and student radio stations. Portable music players are being built with FM-only tuners (where radio tuners are built-in at all), which will lead to further erosion of the AM listening base.

What does this law say about our radio broadcasting industry? Sadly, radio stations are failing to realize that having a 1,000-song playlist and virtually no indie content or DJ autonomy means that nobody wants to listen to your stations. Now they’re really starting to feel it as people tune to podcasts, Internet radio and songs they’ve ripped from their own CD collection.

I certainly hope their solution to that problem isn’t “more top 40 hits.”

Deadline for comments is March 4.

Arrests in tvboxset.com case?

The RCMP announced today that they have made eight arrests in a DVD counterfeiting network based in Montreal that was selling bad copies of DVDs (and in some cases off-TV recordings) of U.S. television series through multiple websites.

The RCMP doesn’t name the eight people arrested, nor the websites involved, nor the name of the company they were working under. But all signs point to TVBoxSet.com, which The Gazette wrote about in August after many users complained of either not getting what they ordered or getting bad copies of what they were expecting. The website is currently offline.

(I tried to call the RCMP spokesperson to confirm this, but their office apparently closes before 3:45pm on a day they issue a major news release.)

Garcia Media Group, which was the company behind the operation, distributed the DVDs through the following nearly-identical websites:

  • tvboxset.com
  • ultimatedvdshop.com
  • allmyfavouriteshows.com
  • tvaddicts.tv
  • tvdvdplanet.net
  • tvondisc.com
  • tvdvdcraze.tv
  • tvmilk.com

as well as a number of other domains that have since been turned into spam sites.

Many of the sites listed above are still operational and will still gladly accept your credit card information.

Not that anyone should be held responsible for being defrauded, but some simple sleuthing on the part of surfers could have prevented their losing money to these scam sites:

  • Check a vendor’s reputation, if only through a simple Google search, before deciding to do business with them. Don’t just assume a professional-looking website will be any more official than some unknown person on eBay.
  • Find out information about a vendor from their website. Do they have a head office? Do they say who they’re owned by? Do they provide links to other organizations that can vouch for them?
  • Be suspicious of any company that offers region-free DVDs or DVDs that haven’t been released yet.
  • If a company says “no problem” at shipping (especially copyrighted and release-controlled material like DVDs) to over 100 countries, chances are they’re ignoring the law.
  • 80% discounts on popular items just don’t happen.
  • Don’t give your credit card number on an unsecured connection!

It should be noted, of course, that this is bootlegging in the traditional sense, profiting off the selling of copied copyrighted material. It is clearly covered under existing copyright law, and it’s clearly illegal.

The RCMP says it started an investigation in February (why did it take them that long?). Let’s hope they have a solid case that will result in long sentences and heavy fines, and that everyone who has been scammed will be refunded.

UPDATE (Dec. 25): Missed this TQS video of the operation, including stacks of dozens of DVD burners that practically bring it into the territory of cartoonish supervillainy.

Quebec to censor fast-car ads?

It’s pretty well agreed among most reasonable people that speed is bad. Unless you’re speeding just a bit above the speed limit, then it’s ok because everyone else does it and you’re not hurting anyone. But anyone who drives faster than you is a maniac, and everyone who drives slower than you is an idiot.

So, some wonder, why do cars have speedometers that go up to 180kph? Why not just technologically limit how fast they can go and make it simpler for everyone?

Well nobody is doing that quite yet, but Quebec is taking a step in the direction of making automakers responsible for speeding. They’re considering banning all advertising that glorifies excessive speeding. Basically all that “professional driver on closed course” stuff, as well as shots of ski-doos flying through the air.

It’s clear that self-regulation isn’t effective here. Half of car ads feature unsafe driving, possibly in violation of the industry’s own rules about advertising. New Zealand started cracking down on these kinds of ads years ago, and Australia is running interference suggesting speeders have small penises.

To see an example of how bad it is, take a look at this Volkswagen commercial, which features speeding, unsafe driving, near-collisions and apparently drunk driving, with the moral of the story that the car’s safety systems will leave you without a scratch no matter how far you push the envelope.

That’s just irresponsible. It’s time to shut down the closed course.

UPDATE (Dec. 22): Of course, to say that such a law is a ridiculous overstepping of legislative authority, a gross attack on free speech and an outrageous violation of our rights by a nanny-state too concerned with wasting our money pretending we’re idiots would also be true.

Private security giving speeding tickets sounds like a bad idea

Playing the Bianca Leduc card with little shame, western off-island mayors want the Quebec government to give them the power to give private security firms the power to hand out tickets for moving violations (such as speeding). They say the SQ is insufficient at the job, partially because their officers are paid so damn much.

Currently, with two notable exceptions, only police officers (municipal police, SQ or otherwise) can hand out legally-enforceable tickets to people. The two exceptions are Stationnement de Montréal (the green onions), who hand out parking tickets (but cannot ticket motorists for moving violations like going through a red light or making a wrong turn), and private security inspectors who patrol the public transit system (like the inspectors AMT hires to check proof of purchase on commuter trains), who can ticket for failing to pay a fare or other minor violations. In neither case are the agents armed, and they cannot make arrests or otherwise forcibly confine citizens.

What the mayors want is a system more like we see in the U.S., in which private companies have a limited role in law enforcement, and their actions are under constant scrutiny (to the point of having video cameras record alleged infringements).

Only one mayor, Michel Kandyba of Pincourt, has stuck out as having reservations about the idea:

Pincourt Mayor Michel Kandyba said he doesn’t agree with the other mayors that it’s a good idea to create a new category of unarmed agents to issue tickets for moving violations. More SQ officers doing more Highway Code enforcement is the better way to go, he said.

“Just imagine all the things that could go wrong with unarmed officers, given the lack of respect people have for authority in Quebec,” he said. “Imagine someone unarmed, who is not a police officer, saying to you, ‘Hey, you’re speeding, I’m giving you a ticket.'”

I think his point is very important, not because I think people are going to pull guns on these unarmed enforcement agents, but because being a police officer is more than just putting on a uniform with a big belt. There’s a reason that SQ officers are paid more than these glorified bouncers that work for private security firms, and that reason makes them much more qualified to handle the high stress situations that will arise when you stop someone for speeding.

Another reason I have reservations about this idea is because of the inequities it creates. Cities with big budgets and rich property owners will be able to afford better security. And then what’s next? Their own private court system? Private hospitals? Will their citizens get a discount on tickets compared to visitors from out of town? 2-for-1 deals?

Maybe I’m just being paranoid and silly. But can SQ officers just be replaced on the roads of Quebec’s small towns with private security officers who are paid half as much?

Free speech isn’t a right on blogs, it’s a privilege

There’s a minor crisis happening in the Quebec blogosphere over Richard Martineau’s blog. He and Canoe are being sued for $200,000 over allegedly libelous comments made by visitors to his blog about lawyer Susan Corriveau.

The concern is over what impact that might have on comment policies at mainstream media sites. Traditional media (especially local empires in Quebec) are still trying to figure out what to do with this whole Internet thing, and are entirely clueless about the implications of user-generated content. They think forcing users to click a button that says “I agree not to post libel” is enough to protect them from liability.

Coincidentally, an earlier post this week by La Presse star blogger Patrick Lagacé mentions that he’s asking for tougher moderation of user comments to get rid of the junk and even cap the length of some discussions.

Ironically, both Martineau’s blog and Lagacé’s blog require user registration before people can make comments. This stands in contrast to websites like The Gazette’s which removed the login requirement to encourage more comments. (Then again, even The Gazette is starting to move back — their only popular blog, Habs Inside/Out, has changed its policy to require moderation of anonymous comments.)

As any forum gets more popular, it starts to see problems it couldn’t predict. Spam is the first to show up, in the form of junk sent by computer to advertise some money-making venture. That can be solved by installing a spam filter, requiring registration or manually moderating comments (or a combination of these).

But then comes the problem of real people posting unwanted things. Libel, flame wars, factual mistakes, personal attacks, trolling, copyrighted works, personal information, pornographic images, off-topic comments, the list goes on. The worst ones will get deleted outright. Border cases might get a polite warning from the blogger or moderator.

For some reason, there’s the implication that the goal is to have unedited, unrestricted, free communication in the comments section of blog posts. This innocent-until-proven-guilty mentality means that a lot of useless, mean or uninteresting comments get attached to blogs, comments that are of no use to anyone and are a waste of time and space.

Little by little, big bloggers are starting to restrict that freedom and filter out the noise.


I moderate comments on this blog. I don’t require user registration (because I know how annoying it is), and I tend to let most non-spam through. But nobody but me has the right to say what is published here. I have deleted plenty of personal attacks, unhelpful garbage, trolling comments and other junk that doesn’t belong here, and I will continue to do so. At the end of the day, I’m responsible for all the content published here, and it’s my ass in the courtroom if anything crosses the line.

I welcome criticism (in fact, some of my best comments are those who reject my entire hypothesis and ridicule my interpretation of the facts), but you have to show your work. Comments like “you suck” and “you’re gay” have no place here or on any other blog.

Three years isn’t severe punishment

Frédéric Garneau, a 20-year-old whose street racing killed two of his three passengers, has been sentenced to three years in jail for his crime.

The judge in the case, Gilles Cadieux, called it a “clear and unequivocal” message to all drivers.

Really? Three years works out to about a year and a half each. The maximum sentence is 14 years. Doesn’t sound very clear, or like they “severely punished” anyone. He’ll also be without a driver’s license for six years. Because his reckless driving killed two people.

Let’s review some facts from the case:

  • Garneau was driving with only a learner’s permit
  • He was drunk (about five beers)
  • His passengers were pleading with him to stop
  • Despite his assertions that he was not racing, he was driving fast enough (150 km/h) to have lost control of the vehicle and see the passengers ejected from the car
  • Though it’s not made explicitly clear in the article, I imagine the passengers who died were not wearing their seat belts, further putting them at obvious risk

I’m not a lawyer or anything, but the phrase “reckless disregard for human life” sounds appropriate. And even for an (at the time) 18-year-old without a criminal record, three years sounds like far too short a sentence.

Is this what the family of Bianca Leduc have to look forward to?

Libel chill is warming slightly

Legal precedent in Canada when it comes to libel has just taken an interesting turn. The Ontario Court of Appeal has given journalists a new kind of defence in libel cases: “public interest responsible journalism”.

(See the complete court ruling)

In short, the defence, which is modelled after a similar one in England, protects journalists who execute due dilligence and responsible journalistic practices in their reporting (like fact-checking, making attempts to get the other side of the story, checking sources for hidden agendas etc.), even if they get some of their facts wrong and even if those things are defamatory, when they write articles about issues of public interest.

The case, Cusson v. Quan, concerns an OPP police officer who sued the Ottawa Citizen and its reporters for an investigative piece they wrote about him, questioning his “heroics” after 9/11, going down to Ground Zero to help in recovery efforts. The article alleges he impersonated an RCMP officer and lied about training he and his dog had received. Though the gist of the story seemed to be correct, and some facts were debatable, the jury ruled that the Citizen got enough facts wrong that the officer should be compensated financially.

Ironically, since the Citizen did not use this defence at trial (one might argue it couldn’t since the defence didn’t exist yet in Canadian law), the appeal was denied and the Citizen still has to pay.

Despite the loss, the Canadian Newspaper Association and other journalist groups are hailing the decision as a victory for journalism in Canada, which will help remove some libel chill that journalists experience even when they do their jobs to the best of their abilities.

Whether a particular piece of journalism qualifies for this defence depends on the following 1o factors (though this is not an exhaustive list):

  1. The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true.
  2. The nature of the information, and the extent to which the subject-matter is a matter of public concern.
  3. The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories.
  4. The steps taken to verify the information.
  5. The status of the information. The allegation may have already been the subject of an investigation which commands respect.
  6. The urgency of the matter. News is often a perishable commodity.
  7. Whether comment was sought from the plaintiff. He may have information others do not possess or have not disclosed. An approach to the plaintiff will not always be necessary.
  8. Whether the article contained the gist of the plaintiff’s side of the story.
  9. The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact.
  10. The circumstances of the publication, including the timing.

It’s a victory for common sense, albeit thanks to a bit of judicial activism. The court based its decision based more on the laws of other countries and its own opinions of what balance there should be between two charter rights than it did based on Canadian jurisprudence.

A couple things to note about this decision before you start breathing too easily:

  1. It’s the Ontario Court of Appeal, not the Supreme Court of Canada. So technically it just applies to Ontario. Whether it goes up to the Supreme Court depends on whether someone appeals the decision (since the Citizen lost the case, I guess it would be up to them to do so), but it’s a significant enough one that I think they would jump at the chance.
  2. Though other provincial courts will probably follow that decision as jurisprudence, Quebec is an entirely different animal. Our laws are very different, and in fact our entire legal system is different from the rest of Canada (distinct society woo!). We’re based on civil law, whereas Ontario’s system (and the principles on which this judgment is based) are common law.
  3. Even if it’s accepted here, you still have to do your homework when you write potentially damaging things. This isn’t like in the U.S. where a plaintiff has to prove “actual malice” and show you intended to lie or be reckless with facts. They need only show that you were lazy, or sensational, or forgetful, or otherwise irresponsible. Or they can simply show that the reporting wasn’t in the public interest.

Still, a good day for journalism.

UPDATE (Nov. 22): CBC lawyer Daniel Henry delves into the ruling for some of its implications.