Jan 132013
 January 13, 2013  Posted by  Court, Non-U.S., Online

A Canadian reader alerted me that there’s a hearing scheduled in a Canadian court tomorrow (Monday) that will likely be of interest to this blog’s readers.

Copyright lawyer Harold Knopf provided the background on the case, in which Voltage Pictures’ filed a motion to compel an ISP, Teksavvy, to disclose the names and addresses of 2,000 subscribers who are currently identified only by IP address. The lawsuit is based on P2P filesharing via BitTorrent, and Voltage’s claim states that once it has obtained the Doe defendants’ names and addresses, it will seek a financial accounting of how much they profited by distribution of their works. Because most people are seeding but not actually obtaining direct financial remuneration, I’m not clear where Voltage is going with this, unless they intend to argue that someone who seeds X movies Y times owes them $$$ based on a per movie cost?

Disturbingly, to privacy advocates, subscribers, and Howard, the ISP decided not to fight the motion.  Knopf  wrote:

Although Teksavvy has indicated that it “will not provide personal information to a 3rd party when copyright infringement is alleged unless ordered to do so by a court”, it has, however, decided in the end not to oppose the motion seeking such an order. It has decided not to cross-examine on Voltage’s affidavit material and not to file any written material.

Teksavvy explained their decision not to oppose in a blog post, but their explanation disappointed those who hoped for a more vigorous defense of subscriber privacy. The firm did fight for more time to notify consumers so that they could move to quash, which is something that Twitter has often done here in the U.S. But despite a defense by subscriber David Ellis, most opinion seems to be running against the ISP’s decision.

As Knopf also noted last month, CIPPIC requested permission from the court to intervene in the case.

In an update today in anticipation of tomorrow’s hearing, Knopf responds to Ellis’s defense. His first statement really says  all that needs to be said:

There isn’t much difference between not opposing and supporting a motion. Whatever the difference is, it really doesn’t normally matter for practical purposes. A motion that is not opposed will usually be granted.

But perhaps Howard’s strongest statement is contained in a blog post he wrote Friday, where he wrote, in part:

Generally speaking, the real issue now is under what circumstances, if any, an ISP is expected or maybe even required to take reasonable steps to safeguard its customers’ privacy. If an ISP can successfully and inexpensively oppose an inadequately documented attempt to breach its customers’ privacy, then why should it be able to walk away and leave its customers on their own and just tell them they can hire their own lawyers? It’s the ISP’s duty under the PIPEDA federal privacy legislation to protect its customers’ privacy. That presumably does not mean simply telling them that their privacy is about to breached, that they are on their own and are free to get a second mortgage and hire their own lawyer.

So has Teksavvy done enough to protect its subscribers’ privacy? We’ve certainly seen U.S. ISP’s simply notify users without fighting motions or subpoenas, but does Canada’s PIPEDA impose more stringent obligations on Canadian ISPs?

  One Response to “A decision by Teksavvy not to fight a motion puts subscribers’ privacy at risk”

  1. When the very first court case came to Canada (2011), These ISP’s made a deal with Voltage not to oppose their filing to seek the names of people they accused of file-sharing their movies:
    Bell Canada

    I believe it was 10 IP’s from each of these ISP’s. One of the Cogeco IP’s was repeated twice. A Bell Canada IP included the Bell Centre (Home of the Montreal Canadiens hockey team).

    Bell, Cogeco and Videotron didn’t even show up in court. Disclosure was granted. Then Voltage dropped any further court cases. Seems they just wanted the names and locations of these people. And it appeared they wanted to test the waters.

    So I call Privcom (the Privacy commissioner of Canada) to discuss what Bell, Cogeco and Videotron did.

    They said (going by memory here) that the ISP’s have an obligation to protect under section 7. Did they do this? I said obviously not.

    That was about it for the conversation. Was quite short.

    Now with a full blown mass lawsuit we have Teksavvy who made the same deal not to oppose, but Teksavvy demanded to be allowed time to inform people.

    So my question is:

    Under PIPEDA, is notice enough protection? I guess being notified 2 weeks in advance is not a lot of time to do anything to protect yourself, let alone digest the possibility of losing $20,000. But is that the spirit of PIPEDA as it’s written?

    What exactly is the obligation to protect? Is 2 weeks notice (2 days in some cases) enough protection? I gave it the once over and it seems fairly open and general, not spelling anything out.

    Seems I will have to make another call, but seems to me PrivCom is being quite brief/curt by not saying anything either when I called the last time. Not sure what to make of it.

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