not being bullied is a baseline, not something you have to earn

So this post has popped up a few times on my feed:

And I feel really ambivalent about it.  I mean, obviously she gets to be the authority on her own experience, and I’m in no way trying to usurp that or diminish her voice.  That said…..

My thoughts

She writes:

The reason I am sharing this is because people think it is funny to laugh at people with disabilities. You can not see my disabilities but they are there and they are REAL. So next time you see photos making fun of people just remember you know nothing about these people or the struggles they face everyday. It is never just harmless fun to laugh at someone.

In a later addendum, she gives more detail about the spine disease, her mental illnesses, and her obesity, concluding with:

I did not choose to be photographed at a low point in my life. The fact that people assume I am fat because I am lazy is false. Or they assume I am fat because I want to be on disability. Obese people are treated as less than human and as something to ridicule. I just want people to be aware that fat people are people too.

I have tons of sympathy and empathy for this situation.  I *felt* it when she said she hadn’t paid any attention to the flash and the giggles because she was used to people laughing – I get that.  Been there and didn't buy the t-shirt because it didn't come in my size.  And her desire to pre-empt the criticisms she knows (we all know) are coming is also all too familiar – she names her obesity, she links it to mental illness, she distinguishes it from her spinal disease, and she assures the reader that she is fighting her body.  It's understandable self-protection, ...but….while I *understand* that mechanism, I feel as though it also dilutes this post. 

Here’s the thing – bullying is wrong.  Laughing at fat people is bullying.  Mocking persons with disabilities (visible or not) is bullying.  Ridiculing the mentally ill is bullying. 

We KNOW it’s wrong.  We shouldn’t (and don’t) have to justify ourselves.  Not being bullied – the right not to be bullied – isn’t something we “earn”, it’s something we have. 

You don’t have to be a good fatty – “I fight my weight daily and I have recently joined a gym” – in order to deserve to be treated like a human being.

You don’t have to be a good crazy –ongoing therapy and trying to get better – in order to deserve to be treated like a human being.

You don’t have to be a good cripple – being a trooper in the face of adversity, doing your best to be “normal”,  – in order to deserve to be treated like a human being.

You don’t have to be trying to “mitigate” what is “wrong” with you to justify not being bullied. 

Nothing is wrong with you.  Something is wrong with the bullies.  And something is wrong with the social narrative that still requires us to justify our entitlement to being accorded basic dignity and respect. 

The Right(s) to One’s Own Body

In July, police approached a computer engineering professor in Michigan to assist them with unlocking a murder victim’s phone by 3D-printing the victim’s fingerprints. 

It is a well-established principle of law that ‘there is no property in a corpse.’ This means that the law does not regard a corpse as property protected by rights.  So hey, why not, right? 

There is even an easy argument to be made that this is in the public interest.  Certainly, that seems to be how Professor Anil Jain (to whom the police made the request) feels: “If we can assist law enforcement that’s certainly a good service we can do,” he says.   

Marc Rotenberg, President of the Electronic Privacy Information Centre (EPIC) notes that if the phone belonged to a crime suspect, rather than a victim, police would be subject to a Supreme Court ruling requiring them to get a search warrant prior to unlocking the phone—with a 3D-printed finger or otherwise.

I’ve got issues with this outside the victim/suspect paradigm though. 

For instance, I find myself wondering about the application of this to live body parts. 

I’ve always been amused by the R v Bentham case, from the UK House of Lords in 2005. Bentham broke into a house to commit robbery and in course of this, used his fingers in his pocket to make a gun shape.  He was arrested.  Though he was originally convicted of possessing a firearm or imitation thereof, that conviction was overturned on the basis that it wasn’t possible for him to “possess” part of his own body.  But…if you can’t “possess” your own body, why wait for death before the State makes a 3-D copy of it for its own purposes?

And…we do have legislation about body parts, both live and dead – consider the regulation of organ donation and especially payment for organs.  Consider too the regulation of surrogacy, and of new reproductive technologies. 

Maybe this is a new area to ponder – it doesn’t fit neatly into existing jurisprudence and policy around the physical body.  The increasing use of biometric identifiers to protect personal information inevitably raises new issues that must be examined. 

UPDATE:  It turns out that the 3D printed fingerprint replica wasn’t accurate enough to unlock the phone.  Undeterred, law enforcement finally used a 2D replica on conductive paper, with the details enhanced/filled in manually.  This doesn’t really change the underlying concern, does it? 

ScoreAssured’s unsettling assurances

Hearing a lot of talk about Tenant Assured – an offering from new UK company ScoreAssured.  Pitched as being an assessment tool for “basic information” as well as “tenant worthiness,” TenantAssist scrapes social media sites (named sites so far as Facebook, Twitter, LinkedIn, and Instagram) content – including conversations and private messages – and then runs the data through natural language processing and other analytic software to produce a report. 

The report rates the selected individual on five “traits” – extraversion, neuroticism, openness, agreeableness, and conscientiousness.   The landlord never directly views posts of the potential tenant, but the report will include detailed information such as activity times, particular phrases, pet ownership etc.

Is this really anything new?  We know that employers, college admissions, and even prospective landlords have long been using social media reviews as part of their background check process. 

TenantAssured would say that at least with their service the individual is asked for and provides consent.   And that is, at least nominally, true.  But let’s face it – consent that is requested as part of a tenancy application is comparable to the consent for a background check on an employment application – “voluntary” only if you’re willing to not go any further in the process.  Saying “no” is perceived as a warning flag that will likely result in one not being hired or not getting housing. Declining jobs and/or accommodations is not a luxury everyone can afford. 

Asked about the possibility of a backlash from users, co-founder Steve Thornhill confidently asserted that “people will give up their privacy to get something they want.”  That may be the case…but personally I’m concerned that people may be forced to give up their privacy to get something they urgently need (or quite reasonably want).

But let’s presume for a second that the consent is “freely” given. Problems with this model remain: 

  • Reports may include information such as pregnancy, political opinions, age, etc. – information that is protected by human rights codes.  (Thornhill says, “all we can do is give them the information, it’s up to landlords to do the right thing”)
  • Performed identity – our self-presentation on social media sites is constructed for particular (imagined) audiences.  To remove it from that context does not render it presumptively true or reliable – quite the opposite.
  • Invisibility of standards – how are these traits being assessed?  What values are being associated with particular behaviours, phrases and activities and are they justified?  An individual who is currently working in a bar or nightclub might show activity and language causing them to be receive negative ratings as excessive partiers or unstable, for instance.  In fact, the Telegraph demonstrated this by running reports on their financial journalists (people who, for obvious reasons, tend to use words like fraud and loan rather frequently) and sure enough the algorithm rated them negatively in “financial stability”.
  • Unlike credit bureaus, which are covered under consumer protection laws, there is no regulation of this sector.  What that means, among other things, is that there is not necessarily any way for an individual to know what is included in their report, let along challenge the accuracy or completeness of such a report. 

The Washington Post quite correctly identifies this as an exponential change in social media monitoring, writing that “…Score Assured, with its reliance on algorithmic models and its demand that users share complete account access, is something decidedly different from the sort of social media audits we’re used to seeing.  Those are like cursory quality-control check; this is more analogous to data strip-mining.”

Would it fly here?

Again, we know that background checks and credit checks for prospective tenants aren’t new.  We also know that, in Canada at least, our Information and Privacy Commissioners have had occasion to weigh in on these issues.

In 2004, tenant screening in Ontario suffered a setback when the  Privacy Commissioner of Ontario instructed the (then) Ontario Rental Housing Tribunal to stop releasing so much personal information in their final orders. As a result, names are now routinely removed from the orders, making it significantly more difficult to scrape the records generally.  As for individual queries, unless you know the names of the parties, the particular rental address and file number already, you will probably not be able to find anything about a person’s history in such matters.

Now, with the release of PIPEDA Report of Findings #2016-002, Feb 19, 2016 (posted 20 May 2016), that line of business is even more firmly shuttered.  There, the OPC investigated the existence of a “bad tenant” list that was maintained by the landlord association. The investigation raised numerous concerns about the list:

  • Lack of consent by individuals for their information to be collected and used for such a purpose
  • Lack of accountability – there was no way for individuals to ascertain if any information about them was on the bad tenant list, who had placed it there, and what the information was. 
  • Simultaneously, the landlord association was also not assessing the accuracy or credibility of any of the personal information that it collected, placed on the list and regularly disclosed to other landlords, who then made decisions based upon it.
  • Further, there was no way to ensure accuracy of the information on the list, and no way for individuals to challenge the accuracy or completeness of the information.

It was the finding of the Privacy Commissioner of Canada that by maintaining and sharing this information, the association was acting as a credit reporting agency, albeit without the requisite license from the province.  Accordingly, the Commissioner found that the purpose for which the tenant personal information was collected, used or disclosed was not appropriate under s.5(3) of PIPEDA.  The institution, despite disagreeing with the characterization of it as a credit bureau, implemented the recommendation to destroy the “bad tenant” list, cease collecting information for such a list, and to no longer share personal information about prospective tenants without explicit consent.

This is good news, but the temptation to monetize violations of privacy continues. SecureAssist has expansive plans.  They anticipate launching (by the end of July 2016) similar “report” products targeted at Human Resources officers and employers, as well as parents seeking nannies. 

“If you’re living a normal life,” Thornhill asserts, “then, frankly, you have nothing to worry about.”  We all need to ask– who defines “normal”?  And since when is a corporation’s definition of “normal” the standard for basic human dignity needs like employment or housing? 



It can happen to anyone....

Macleans magazine’s cover story in November 2005 announced that then-Privacy Commissioner of Canada Jennifer Stoddart’s cellphone records had been obtained by them.

Now the FTC’s Chief Technologist, Lorrie Cranor, has had a similar experience -- someone impersonated her and was able to highjack her cellphone number and acquire two top-of-the-line iPhones. 

I was interested in learning where the theft had occurred and how much of my personal information was in the hands of the thief. Section 609(e) of the Fair Credit Reporting Act requires that companies provide business records related to identity theft to victims within 30 days of receiving a written request. So, following the template provided by, I wrote a letter to my carrier requesting all records related to the fraudulent upgrades on my account. After about two months my carrier sent me the records. I learned that the thief had used a fake ID with my name and her photo. She had acquired the iPhones at a retail story in Ohio, hundreds of miles from where I live, and charged them to my account on an installment plan. It appears she did not actually make use of either phone, suggesting her intention was to sell them for a quick profit. As far as I’m aware the thief has not been caught and could be targeting others with this crime.

I’ve said it before – blaming the user for failing to protect themselves adequately doesn’t work, and in fact perpetuates the problem.  Writing about her experience, Cranor is clear that “mobile carriers and third-party retailers need to be vigilant in their authentication practices to avoid putting their customers at risk of major financial loss and having email, social network, and other accounts compromised.”


I Was Just Venting: Liability for Comments on One's Facebook Page

We’ve all used social media to vent about *something* —a bad day, a jerk on the bus, an ex– whatever is enraging us at the moment.   It’s arguable whether we intend those posts to be taken seriously or whether they’re just hyperbole.  The nature of venting is, after all, about release.  It’s cathartic.

But….what if you could be held liable for your venting?

Worse yet, what if you were held liable for what your friends said or did in response?

Sound crazy?  Turns out it’s possible…

Pritchard v Van Nes -- picture it – British Columbia…..<dissolve scene>

Mr. Pritchard and his family moved in next door to Ms. Van Nes and her family in 2008.  The trouble started in 2011, when the Van Nes family installed a two-level, 25-foot long, and 2-waterfall “fish pond” along their rear property line.  The (constant) noise of the water disturbed and distressed the Pritchards, who started out (as one would) by speaking to Ms. Van Nes about their concerns.

Alas, rather than getting better, the situation kept getting worse

  • the noise of the fish pond was sometimes drowned out by late-night parties thrown by the Van Nes family;

  • when the Pritchard’s complained about the noise, the next party included a loud explosion that Ms. Van Nes claimed was dynamite;

  • the lack of fence between the yards meant that the Van Nes children entered the Pritchard yard;

  • the lack of fence also allowed the Van Nes’ dog to roam (and soil) the Pritchard yard, as evidenced by more than 20 complaints to the municipality; and

  • parking (or allowing their guests to park) so as to block the Pritchard’s access to their own driveway.  When the Pritchards reported these obstructions to police, it only exacerbated tensions between the parties.

On June 9, 2014 tensions came to a head.  Ms. Van Nes published a Facebook post that included photographs of the Pritchard backyard:

Some of you who know me well know I’ve had a neighbour videotaping me and my family in the backyard over the summers.... Under the guise of keeping record of our dog...
Now that we have friends living with us with their 4 kids including young daughters we think it’s borderline obsessive and not normal adult behavior...
Not to mention a red flag because Doug works for the Abbotsford school district on top of it all!!!!
The mirrors are a minor thing... It was the videotaping as well as his request to the city of Abbotsford to force us to move our play centre out of the covenanted forest area and closer to his property line that really, really made me feel as though this man may have a more serious problem.

The post prompted 57 follow-ups – 48 of them from Facebook friends, and 9 by Ms. Van Nes herself. 

The narrative (and its attendant allegations) developed from hints to insinuations to flat out statements that Mr. Pritchard was variously a “pedophile”, “creeper”, “nutter”, “freak”, “scumbag”, “peeper” and/or “douchebag”.

Not content to keep this speculation on the Facebook page, a friend of Ms. Van Nes actually shared the post on his own Facebook page and encouraged others to do the same, and further suggested that Ms. Van Nes contact the principal of the school where Mr. Pritchard taught and “use his position as a teacher against him.  I would also send it to the newspaper.  Shame is a powerful tool.”

The following day, that same friend emailed the school principal, attaching the images from Ms. Van Nes’ page, some (one-sided) details of the situation and the warning that “I think you have a very small window of opportunity before someone begins to publicly declare that your school has a potential pedophile as a staff member. They are not going to care about his reasons – they care that kids may be in danger.”

That same day, another community member (Ms. Regnier  whose children had been taught by Mr. Pritchard and who believed him to be an excellent teacher and valuable resource for the school and community) became aware of Ms. Van Nes’ accusations and went to the school to inform Mr. Pritchard that accusations that he was a pedophile had surfaced on Facebook.  After talking with Mr. Pritchard, she accompanied him to the office to speak with the Principal (Mr. Horton), who had already received the email warning about Mr. Pritchard.  Mr. Horton contacted his superior, who, Mr. Horton testified, seemed shocked, asking Mr. Horton whether he believed the allegations; Mr. Horton said he did not, although he testified that he was concerned as the allegations reflected poorly on him and the school. He testified that if the allegations were substantiated, Mr. Pritchard would have had his teaching license revoked.

Tracking the allegations back to Ms. Van Nes’ Facebook page, Mr. Pritchard’s wife printed out the posts and Ms. Van Nes’ friends list.  They took this material with them to the police station to file a complaint.  Later that evening a police officer arrived at the Pritchard home to collect more details – when the Pritchards attempted to show him the content on Facebook they found that it was no longer accessible. 

Altogether, the post was visible on Ms. Van Nes’ Facebook page for approximately 27 ½ hours.  Its deletion, however, did not remove copies that had been placed on other Facebook pages or shared with others, nor could it prevent the spread of information. 

The effects have been many:

There was at least one child of one of Ms. Van Nes’ “friends” who commented on the posts, who was removed from his music programs. The next time he organized a band trip out of town and sought parent volunteers to be chaperones, he was overwhelmed with offers; that had never previously been the case. He feels that he has lost the trust of parents and students. He dreads public performances with the school music groups. Mr. Pritchard finds he is now constantly guarded in his interactions with students; for example, whereas before he would adjust a student’s fingers on an instrument, he now avoids any physical contact to shield himself from allegations of impropriety. He has cut back on his participation in extra-curricular activities. He has lost his love of teaching; he no longer finds it fun, and he wishes he had the means to get out of the profession. He considered responding to a private school’s advertisement for a summer employment position but did not because of a concern that the posts were still “out there”. Knowing that at least one prominent member of the community saw the posts and commented on them, he feels awkward, humiliated and stressed when out in public, wondering who might know about the Facebook posts and whether they believe the lies that were told about him.
Mr. Pritchard also testified as to how frightened he was that some of the posts suggested he should be confronted or threatened. Mr. Pritchard and his wife both testified that a short time after the posts, their doorbell was rung late at night, and their car was “keyed” in their driveway, an 80 cm scratch that cost approximately $2,000 to repair. His wife also testified to finding large rocks on their driveway and their front lawn.
They also both testified that their two sons, both of whom attended the school where their father teaches, are aware of the Facebook posts, and have appeared to be upset and worried as to the consequences.
Mr. Pritchard testified that he thinks it is unlikely that he could now get a job in another school district. He acknowledged that in fact he has no idea how far and wide the posts actually spread, but he spoke with conviction as to this belief, and I find the fact that he holds this belief to be an illustration of the terrible psychological impact this incident has had.

Who Is Liable and For What?

It’s a horrible tale, and nobody wins.  But what does the court have to say about it?

The claim for nuisance – that is, interference with Mr. Pritchard’s use and enjoyment of his land – is pretty clear.  Both the noise from the waterfall and the two years of the Van Nes’ dog defecating on their yard were clear interferences.  A permanent injunction that the waterfall not be operated between 10pm and 7am was issued.  The judge also awards $2000 for the waterfall noise, and a further $500 for the dog feces. 

The real issue here is, of course, the claim for defamation. 

Is Ms. Van Nes responsible for her own defamatory remarks?  Yes she is.  The remarks and their innuendo were defamatory, and were published to at least the persons who responded, likely to all 2059 of her friends, and (given Ms. Van Nes’ failure to use any privacy settings) viewable to any and all Facebook users.

Is Ms. Van Nes liable for the republication of her defamatory remarks by others? Republication, in this case, happened both on Facebook and via the letter to the school principal.  Yes she is, because she authorized those republications.  Looking at all the circumstances here, especially her frequent and ongoing engagement with the comment thread, the judge finds that Ms. Van Nes had constructive knowledge of Mr. Parks’ comments, soon after they were made.

Her silence, in the face of Mr. Parks’ statement, “why don’t we let the world know”, therefore effectively served as authorization for any and all republication by him, not limited to republication through Facebook. Any person in the position of Mr. Parks would have reasonably assumed such authorization to have been given. I find that the defendant’s failure to take positive steps to warn Mr. Parks not to take measures on his own, following his admonition to “let the world know”, leads to her being deemed to have been a publisher of Mr. Parks’ email to Mr. Pritchard’s principal, Mr. Horton.

Is Ms. Van Nes liable for defamatory third-party Facebook comments?  Again, the answer is yes.  The judge sets out the test for such liability as:  (1) actual knowledge of the defamatory material posted by the third party; (2) a deliberate act or deliberate inaction; and (3) power and control over the defamatory content.  If these three factors can be established, it can be said that the defendant has adopted the third party defamatory material as their own.

In the circumstances of the present case, the foregoing analysis leads to the conclusion that Ms. Van Nes was responsible for the defamatory comments of her “friends”. When the posts were printed off, on the afternoon of June 10th, her various replies were indicated as having been made 21 hours, 16 hours, 15 hours, 4 hours, and 3 hours previously. As I stated above, it is apparent, given the nine reply posts she made to her “friends”’ comments over that time period, that Ms. Van Nes had her Facebook page under, if not continuous, then at least constant viewing. I did not have evidence on the ability of a Facebook user to delete individual posts made on a user’s page; if the version of Facebook then in use did not provide users with that ability, then Ms. Van Nes had an obligation to delete her initial posts, and the comments, in their entirety, as soon as those “friends” began posting defamatory comments of their own. I find as a matter of fact that Ms. Van Nes acquired knowledge of the defamatory comments of her “friends”, if not as they were being made, then at least very shortly thereafter. She had control of her Facebook page. She failed to act by way of deleting those comments, or deleting the posts as a whole, within a reasonable time – a “reasonable time”, given the gravity of the defamatory remarks and the ease with which deletion could be accomplished, being immediately. She is liable to the plaintiff on that basis.

Having established all three potential forms of liability for defamation, Mr. Pritchard is awarded $50,000 in general damages and an additional $15,000 in punitive damages.

But I Was Just Venting…

A final thought from the judgement – one that takes into account the medium and the dynamic of Facebook. 

I would find that the nature of the medium, and the content of Ms. Van Nes’ initial posts, created a reasonable expectation of further defamatory statements being made. Even if it were the case that all she had meant to do was “vent”, I would find that she had a positive obligation to actively monitor and control posted comments. Her failure to do so allowed what may have only started off as thoughtless “venting” to snowball, and to become perceived as a call to action – offers of participation in confrontations and interventions, and recommendations of active steps being taken to shame the plaintiff publically – with devastating consequences. This fact pattern, in my view, is distinguishable from situations involving purely passive providers. The defendant ought to share in responsibility for the defamatory comments posted by third parties, from the time those comments were made, regardless of whether or when she actually became aware of them.

So go ahead. Vent all you want. But your responsibility may extend further than you think…proceed with caution.

Revenge Porn: In Ontario, You’ll Pay With More Than Karma

Doe 464533 v N.D. is a January 2016 decision from the Ontario Superior Court of Justice that makes a strong statement that those who engage in revenge porn will pay with more than just karma points!

The case involved an 18-year-old girl, away at university but still texting, phoning, emailing and otherwise connecting with her ex-boyfriend. Though the formal relationship had ended in spring, they continued to see each other “romantically” through the summer and into that autumn.  These exchanges included him sending multiple intimate photos and videos of himself, and requesting the same of her. 

After months of pressure, she made an intimate video, but was still uncomfortable sharing it.  She texted making clear her misgivings and he convinced her to relent, reassuring her that no one else would ever see the video. Eventually and despite her misgivings she sent the video to him.

Shortly thereafter, she learned that her ex had, on the same day he received it, posted the video to an online website.  He was also sharing it with some of their high school classmates.  She was devastated and humiliated by the discovery, leading to emotional and physical distress that required ongoing counselling, as well as suffering academically and socially. 

The video was online for approximately three weeks before his mother (hearing of the incident from the victim) forced him to remove it.  As the Judge points out, “[t]here is no way to know how many times it was viewed or downloaded during that time, or if and how many times it may have been copied onto other media storage devices…or recirculated.”

The damage is not, of course, limited to that three-week period – it is persistent and ongoing.  She continues to struggle with depression and anxiety.  She lives with the knowledge that former classmates and community members are aware of the video (and in some cases have viewed it), something that has caused harm to her reputation. In addition, she is concerned about the possibility that the video may someday resurface and have an adverse impact on her employment, her career, or her future relationships.


The police declined to become involved due to the age(s) of those involved, but she did bring a civil action against him. 

She was successful on her claim of breach of confidence.

She was successful on her claim of intentional infliction of mental distress.

But where it gets really interesting is in Justice Stinson’s assessment of the invasion of privacy claim.

Building upon the recognition of a tort of intrusion upon seclusion in Ontario, he returns to that analysis to locate the injury here as one not of intrusion but of public disclosure of embarrassing facts.  

Normally, the three factors necessary to show such a tort would be:

  1. The disclosure must be a public one. 
  2. The facts disclosed must be private; and
  3. The matter made public must be one which would be offensive and objectionable to a reasonable man of ordinary circumstances.

It is incontrovertible that the video was publicly disclosed. The subject matter of the video – apparently her masturbating – is certainly private.  The first two elements are made out. 

Here is where the judge wins my heart – he refuses to layer sexual shame on an already victimized plaintiff.  Instead of focussing on the subject of the video (her masturbating), he modifies the final requirement so that the requirement is that either the matter publicized or the act of publication itself would be highly offensive to a reasonable person.

In this case, it is the behaviour of the ex that is offensive:

…the defendant posted on the Internet a privately-shared and highly personal intimate video recording of the plaintiff. I find that in doing so he made public an aspect of the plaintiff’s private life. I further find that a reasonable person would find such activity, involving unauthorized public disclosure of such a video, to be highly offensive. It is readily apparent that there was no legitimate public concern in him doing so.

Justice Stinson issues an injunction directing the ex to immediately destroy any and all intimate images or recordings of the plaintiff in whatever form they may exist that he has in his possession, power or control.  A further order permanently prohibits him from publishing, posting, sharing or otherwise disclosing in any fashion any intimate images or recordings of her.  Finally, he is permanently prohibited from communicating with her or members of her immediate family, directly or indirectly.

As for damages, the judge mentions that her claim is limited by procedure to $100,000.    He then considers the following:

  • ·         The circumstances of the victim at the time of the events, including factors such as age and vulnerability. The plaintiff was 18 years old at the time of the incident, a young adult who was a university student. Judging by the impact of the defendant’s actions, she was a vulnerable individual;
  • ·         The circumstances of the assaults including their number, frequency and how violent, invasive and degrading they were. The wrongful act consisted of uploading to a pornographic website a video recording that displayed intimate images of the plaintiff. The defendant’s actions were thus very invasive and degrading. The recording was available for viewing on the Internet for some three weeks. It is impossible to know how many times it was viewed, copied or downloaded, or how many copies still exist elsewhere, out of the defendant’s (and the plaintiff’s – and the Court’s) control. As well, the defendant showed the video to his friends, who were also acquaintances of the plaintiff. Although therewas no physical violence, in these circumstances, especially in light of the multiple times the video was viewed by others and, more importantly, the potential for the video still to be in circulation, it is appropriate to regard this as tantamount to multiple assaults on the plaintiff’s dignity;
  • ·         The circumstances of the defendant, including age and whether he or she was in a position of trust. The defendant was also 18 years of age. He and the plaintiff had been in an intimate – and thus trusting – relationship over a lengthy period. It was on this basis, and on the basis of his assurances that he alone would view it, that he persuaded her to provide the video. His conduct was tantamount to a breach of trust; and
  • ·         The consequences for the victim of the wrongful behaviour including ongoing psychological injuries. As described above, the consequences were emotionally and psychologically devastating for the plaintiff and are ongoing

He awards:

General damages:  $50,000

Aggravated damages (where injury was aggravated by the manner in which it was done):  $25,000

Punitive damages:  $25,000         

With pre-judgement interest and her costs for the action, the full award is $141,708.03

Is it enough to make up for the violation?  No, but I can’t imagine any amount would be.  I hope it’s enough to make the next malicious ex think twice before engaging in this type of behaviour.

On top of that, she gets validation.

She gets recognition that NOTHING she did was inappropriate or offensive.

The judge commends her for earning her undergraduate degree despite these events, as well as for her courage and resolve in pursuing the remedies to which she is entitled. Further, he lets her know that through that courage, she has set a precedent that will allow others who are similarly victimized to seek recourse.






Speaking of the Right to be Forgotten, Could We Please Forget This Fearmongering?

In the wake of the original Right to be Forgotten (RTBF) decision, citizens had the opportunity to apply to Google for removal from their search index of information that was inadequate, irrelevant, excessive and/or not in the public interest.  Google says that since the decision it has received more than 250,000 requests, and that they have concurred with the request and acted upon it in 41.6% of the cases

In France, even where Google accepted/approved the request for delisting, it implemented that only on specific geographical extensions of the search engine – primarily .fr (France) although in some cases other European extensions were included.  This strategy resulted in a duality where information that had been excluded from some search engine results was still available via and other geographic extensions.  Becoming aware of this, the President of CNIL (France’s data protection organization) formally gave notice to Google that it must delist information on all of its search engine domains.  In July 2015 Google filed an appeal of the order, citing the critiques that have become all-too-familiar – claiming that to do so would amount to censorship, as well as damaging the public’s right to information.

This week, on 21 September 2015, the President of CNIL rejec ted Google’s appeal for a number of reasons:

  • In order to be meaningful and consistent with the right as recognized, a delisting must be implemented on all extensions.  It is too easy to circumvent a RTBF that applies only on some extensions, which is inconsistent with the RTBF and creates a troubling situation where informational self-determination is a variable right;

  • Rejecting the conflation of RTBF with information deletion, the President emphasized that delisting does NOT delete information from the internet.  Even while removed from search listings, the information remains directly accessible on the source website.

  • The presumption that the public interest is inherently damaged fails to acknowledge that the public interest is considered in the determination of whether to grant a particular request.  RTBF is not an absolute right – it requires a balancing of the interest of the individual against the public’s right to information; and

  • This is not a case where France is attempting to impose French law universally – rather, CNIL “simply requests full observance of European legislation by non European players offering their services in Europe.”

With the refusal of its (informal) appeal, Google is now required to comply with the original CNIL order.  Failure to do so will result in fines that begin in the $300,000 range but could rise as high as 2-5% of Google’s global operating costs.

The Balance Inherent in the Right to be Forgotten

Trust me, I’d love to stop writing about the RTBF.  I’m not even sure how it came to take up so much real estate on this blog and in media generally. Especially since, as I’ve said before, it isn’t really anything new!  Nevertheless, the RTBF continues to rankle as the original decision reverberates through search engine companies and various countries around the globe.

A New York Times article on 5 Aug 2015 sets out the original decision and examines the changes wrought by the decision, positing that the RTBF will ultimately spread outside the EU boundaries and become normalized in multiple jurisdictions including the US. 

Emma Llansó, a free expression scholar at the Center for Democracy and Technology, is quoted criticizing the RTBF within the context of the US saying:

“When we’re talking about a broadly scoped right to be forgotten that’s about altering the historical record or making information that was lawfully public no longer accessible to people, I don’t see a way to square that with a fundamental right to access to information”

The article provides strong arguments on the other side as well. Marc Rotenberg of the Electronic Privacy Information Center  that says that “global implementation of the fundamental right to privacy on the Internet would be a spectacular achievement” and a positive development for users.  Asked about the allegation that freedom of speech is compromised by the removal of information, he notes that there are ways to limit access to private information that do not conflict with free speech and in fact that Google already has a process for global removal of some identifiable private information, like bank account numbers, social security numbers and sexually explicit images uploaded without the subject’s consent (“revenge porn”) that hasn’t attracted the same concerns. 

As for concerns about international implementation, Jonathon Zittrain of the Berkman Centre for Internet and Society at Harvard reminds us that this too is already in practice—when Google receives a takedown notice for linking to copyright infringing content, it removes those links from all of its sites across the world.


In any discussion of this issue it’s important to understand that RTBF was not intended to be an absolute right – rather it is inherently a process of balancing competing interests.  Indeed, after the original RTBF decision, Google instituted a process by which individuals could make RTBF requests.  Their own data shows that since the process was instituted in May 2014, roughly 41 percent of the one million requests it has received have been successful.  It is also worth noting that the original information “removed” in the successful requests doesn’t disappear – rather, the original source is no longer indexed by Google or shown in search engine results.

A recent decision in British Columbia shows that, although the RTBF hasn’t been formally implemented in Canada, the balancing of rights is active and seems to be working out just fine.

Niemela v. Malamas arises from a situation where former clients allegedly made defamatory comments about Mr. Niemela on a variety of sites.  Although the comments ceased, Mr. Niemela found that his law practice was affected by these comments.  Accordingly, he began an action against those who he believed had made the comments and the sites upon which the comments were published.  He was successful in this claim, and thus obtained injunctions requiring the removal of 146 posts from various sites. 

Where it becomes particularly interesting, however, is that he also filed suit against Google for publishing defamatory statements about him because individuals gained access to the information through being able to view snippets of the comments in the Google search results. Google asked that this action be dismissed, and ultimately it was—because the court determined that on all the facts the “snippets” were the product of an algorithm and that there was nothing to indicate that Google was actively involved in publishing the statements.

It doesn’t end there, however.  When the first suit concluded, Google voluntarily removed links to the 146 sites from its Canadian search engine results.  Mr. Niemela, however, was not satisfied with this – he wanted Google to remove the links from its search engine results worldwide. 

In considering this request, the court set out a three-part test that Mr. Niemela must meet:

  1. that there is strong evidence that the words are defamatory;
  2. that a failure to grant the injunction will result in irreparable harm; and
  3. that the balance of convenience favours granting the injunction.

On the facts, it was the opinion of the court that while there was strong evidence of defamation, the case failed at the second step – (i) because the majority of searches on Mr. Niemela were made on the Google Canada; (ii) it was not obvious that the damage Mr. Niemela alleged was caused by the defamatory comments at all; and (iii) such an order would not be internationally enforceable since it was against US policy on defamation and freedom of speech.

This is a great example of how to approach RTBF – all the facts are considered in context to assess the role of the search engine results in perpetrating the injury and to ascertain whether ON BALANCE an order to remove the information (and the extent of such removal) is warranted. 

In the end, what the RTBF requires is a balancing of the benefits of online information availability against the privacy of individuals. 

Really – does this strike you as compromising an important public record?  As undercutting freedom of expression?  Even of facilitating user vanity at the expense of public information?  Or is it the kind of approach that should be built into the process of digitizing and making public information about individuals in order to ensure that in our excitement about technological capacity we don’t compromise individual autonomy?


Reclaiming YourSelf

“I felt that my silence implied that I *should* be ashamed….”

I LOVE this project, both the explanatory video and the photo shoot to which it refers.  Danish journalist Emma Holten, who had been victimized by revenge porn, on the importance of consent. 

We have seen the results of public shaming of the sexuality of girls and women – we’ve seen it in the suicide of Amanda Todd, the death of Rehteah Parsons.  In the way(s) others use the threat of releasing/sharing such photos to attempt to extort and manipulate girls and women.  And Holten is correct that this is grounded in misogyny, in the hatred and objectification of women. 

It is grounded too in the underlying attitude that female bodies and sexuality are wrong.  If these images, those naked bodies were not presumptively “shameful”, their revelation could not leveraged as a threat.  The judgments that perpetuate the sharing of such photos (“you shouldn’t have been such a whore”) reinforce and reiterate that shame. 

Holten’s response, to refuse to be shamed about her body and sexuality is a powerful one.  The decision to participate in a photo shoot and release those photos publicly – to actively share images of her body, to refuse to feel shamed about her sexuality – is an important one.  By refusing to allow herself to be subverted or silenced, she instead takes the site/sight of her “shame” and transforms it, making of it not only a moment of resistance but a response and refutation.  A celebration and a reclamation.

Re-Viewing Reputation : Italy Investigates Trip Advisor

We rely on reputation more and more to help us make decisions about trust and relationships in online spaces.  It is not surprising then that the very system(s) from which reputation is derived need to be re-viewed and assessed in order to ensure that reputation is and remains reliable and trustworthy. 

 An iteration of this concern is beginning in Italy, whose anti-trust body just announced an investigation into Trip Advisor.  The site attaches aggregate ratings to hotels, restaurants and other services based on individual reviews and rankings (also viewable by users) submitted by users of those services.  The investigation is a response to allegations (by consumers and by some service) that information is not clearly and evidently the result of using the services – that some reviews are from users who may never have visited or used the service in question; and that some information is in fact commercial placement that is not easily distinguished from user-provided reviews.    

Interestingly, the investigation looks not just into the validity/veracity of the information but also into whether Trip Advisor sufficiently guards against gaming of their system.   It will be interesting to see how broadly the authority defines Trip Advisor’s responsibilities.  What if anything must a site do to ensure the quality of the content posted on their site and included in their aggregation?  What standards should their due diligence be judged against, and what penalties applied?   Increasingly as more complex information relationships become the norm, such a question would likely fall under the rubric of innocent dissemination, where an intermediary like Trip Advisor does not necessarily have such a duty unless or until notified of a concern or problem. 

Protecting Intimacy, Preventing Revenge and Balancing Fundamental Rights

Recent court decisions in Germany and Israel seem to indicate a growing recognition of the importance of personal privacy as well as the potential(s) for damage to privacy as a result of disclosure of intimate images and/or details.

In Israel, the Supreme Court just upheld the 2011 decision in Plonit vs. Ploni and Almonit.  The case involved a challenge to the publication of a book, filed against both the author of the book and its publishers.  The book detailed a relationship with a female student and was written by the male with whom she had previously had a relationship.  In requesting that the publication be recalled, she claimed that her private and public world were described in graphic detail, including her body, emotions, weaknesses, conscience, activities and preferences for sexual stimulation.  The judge agreed that whether or not the book was classified as fiction, the plaintiff was sufficiently identifiable that the book was an invasion of privacy.  Naming both privacy and free speech to be fundamental rights, the judge felt that the appropriate balance between literary freedom and privacy, in this case, justified preventing the book from being published as well as paying the plaintiff damages. 

While private ownership of images rather than publication of text was at issue in Germany, the court struck a similar balance, at least in intimate context(s).  At the end of a relationship with a professional photographer, the woman plaintiff requested that he delete photographs and videos of her taken during their relationship.  When he refused, she went to court asking that they enforce her request.  A variety of images were at issue, both erotic and non-erotic.  It was unquestioned that they had all been taken with consent.  Nevertheless, the court determined that any consent given to possession of the images was withdrawn at the end of the relationship.  Given that and based on a right to image, and the recognition that intimate images go to the heart of the personality right, the court found that her ex had an obligation to delete upon request all nude or otherwise erotic images.  Images characterized as everyday or otherwise unlikely to compromise her privacy were excluded by the order and did not have to be deleted on request. 

With the EU recognizing a “right to be forgotten”), the media trumpeted the German decision as Germany upholding a right to one’s own image, the media claimed a victory for those victimized by revenge porn.  Viktor Mayer-Schönberger notes that the German case is a particular manifestation of European doctrine rather than an iteration of the right to be forgotten.  "But what can be said is that is that these two rulings may make more and more people aware of their personal rights in the digital sphere. At the very least, it should embolden future claimants who pro-actively want to prevent revenge porn."



The First Rule of Fight Club: Understanding Context in Interpreting Online Information

margin notes

  • Whether we use privacy settings or not, each of us has some culturally/ subculturally developed expectation of privacy and the limits of information sharing.  These govern the expectations of privacy we apply to our online thoughts and behaviours.


  • We dress and speak differently with friends than in a job interview – those distinctions get lost when online statements are re-viewed out of context.   Does the act of doing something online rather than offline really transform every utterance into a truthful and reliable reflection of who we are?


  • Let’s not criminalize thoughtlessness, nor make it into a weight to be carried for the rest of someone’s life.


We have all heard the various cautions about watching what we put online for fear of repercussions. 

When we think of those repercussions, however, we most often think of administrative decisions – the impact on a job seeker or university applicant of a racy photo, troubling tweet or similar artifact.   There are other potential repercussions — more immediate, more serious and more lasting. Some troubling examples:

An Ontario man ranted online that the Children’s Aid Society that had apprehended his son deserved a suicide attack and was charged criminally.
A 15-year-old who had tweeted that if George Zimmerman was found not guilty he’d “shoot everyone in Zion…and ill [sic] get away wit [sic] it just like Zimmerman” was arrested and charged with a felony.  Despite law enforcement statements that there was no truth to the statement, the youth has still been criminally charged.
An 18-year-old who regularly posts his own rap lyrics and videos was charged with “communicating terrorist threats”after posting rap lyrics that referenced the Boston marathon bombings.  Despite petitions and arguments that locate the statement under the First Amendment protection of freedom of speech, the youth remains incarcerated and has been denied bail. 
An 18 year old girl was ordered to remove a Facebook status where she "LOL-ed" her report of her DUI accident.  Despite her statements that she had no intention of minimizing or making fun of the incident, she was sentenced to two days in jail for contempt of court when she failed to do so.
Two Britons on their way to the US to “destroy America” were met at the airport, searched and detained by armed guards.  Despite attempting to explain that “destroy” in this context referred to partying, they were kept overnight and put on a return flight the next day.

In each of these situations, we see statements made on social media being taken out of context by law enforcement and resulting in various degrees of criminal investigation, detention and prosecution. 


Context is key

I’ve written before about the problematic presumption that information online is inherently public.  Here I want instead to examine the context within which such information is shared; and then explore the importance of understanding that context in appropriately interpreting the information. 


Ibrahmin suggests that online networks be thought of as “complicit risk communities where personal information becomes social capital which is traded and exchanged.” Thus, if we are to correctly understand the interactions within those spaces, it is imperative that we recognize that these utterances, performances, and risks are undertaken within a particular community and are enacted with a view to acquiring social capital within that particular community. 

While observers may believe that any or all information posted online is inherently public,  research suggests rather that the absence of (or failure to adhere to) current mainstream privacy standards does not indicate an absence of privacy or the desire for privacy altogether.  Indeed, from historical antecedents through to contemporary youth online engagement  we see recognized community norms that facilitate the recognition and protection of privacy even where no physical or spatial privacy is possible. 

One of the fundamental underpinnings of the “if it’s on the Internet its public” attitude is the recognition that it’s never that hard for motivated searchers to find information no matter what precautions or obfuscations are employed by the user.  Questions about the accuracy, reliability or even truthfulness of the information that can be found in this way are left unaddressed by this presumption

Accordingly, as online engagement increases, so too does the collection of information from those spaces by external bodies, be they employers (current or prospective); educational institutions; lawyers; law enforcement bodies or even the State itself.   Where this information is being used by third parties, there is a risk that the information will be misinterpreted or accorded more weight than is deserved. 

Social Media and Law Enforcement

A Lexis Nexis Risk Solutions 2012 survey of 1200 law enforcement professionals reveals the extent to which social media use has permeated law enforcement activities.   At least 50% of the respondents use social media at least weekly for law enforcement purposes, and 67% believe that social media use is of assistance not only in solving crimes but in solving them quickly.  The study shows that social media information and platforms are used for a variety of purposes, including identifying persons, discovering criminal activity in the first place, and gathering evidence.

Research on social media conducted for Public Safety Canada recently included 11 interviews with persons related to law enforcement about their use of social media in February and March 2011.  In their results detailing the way(s) in which social media may be used in information gathering and investigations, respondents discussed Open Source Intelligence gathering (OSINT) – finding the profile(s) of an already identified suspect individual, mapping the interpersonal networks, and collecting other information which can be linked to the individual at issue.  While this may have a positive impact in some cases such as that of Rodney Brardfod, who was being investigated for armed robbery and was exonerated by a Facebook status, the process does result in a largely unregulated collection of personal information and the inferences drawn from information as well as performance and social connection(s) to others.

"we run the risk of sarcasm, artistic expression, mere frustration or hyperbole resulting in the criminalization of individuals who are thoughtless rather than dangerous."

There are also instances where a particular suspect isn’t identified, but a particular incident is at issue and law enforcement agencies use social networks in order to identify a suspect.  In both the Vancouver, BC, Stanley Cup riot and the London, Ontario, riots, law enforcement interacted with SNSs in novel ways.  While participants were posting pictures and stories on Facebook, Twitter and other networks, police were able to follow the action, identify perpetrators, and levy charges more serious than simple participation (in the cases of those who detailed their actions). Of course, this process isn’t restricted to law enforcement agencies -- in the wake of the Vancouver riots numerous Facebook groups were set up by users for the purposes of assisting with identifying perpetrators  while others eschewed Facebook and used the web directly to set up similar sites.

Law enforcement does not simply use SNSs reactively -- it is increasingly the case that social network sites are monitored proactively, as in the case of the NYPD, who actually set up a Facebook team to monitor SNSs on an ongoing basis,  or the recent revelation of the Department of Homeland Security’s program  that included a list of key words and search terms that are monitored prophylactically for security reasons. 

It is unquestioned then that law enforcement can and does use information from social media sites.    My purpose here isn’t to argue that these uses are good or bad – rather, I am arguing that the importance of context in understanding and interpreting this information cannot be overstated.  Identity presentations, connections and interactions are informed by the context in which they exist, as well as existing for the purpose of facilitating interactions and social capital within those spaces. 

In the first example given above, Jesse Hirsch was accepted as a “Facebook Expert” in the Ontario criminal trial of a young man who posted comments on his Facebook threatening a suicide attack against the Children’s Aid Society who had recently apprehended his infant son.  Hirsch testified that Facebook users “routinely embellish what they say as part of an online persona” and the accused was ultimately acquitted.    It is imperative that the role of context in shaping the presentation of information and tone of online be understood.   If law enforcement agencies are unable to do so, recourse should be had to experts who do understand the role of context and performance in online spaces.  Where charges make it to court, counsel must insist on the right to lead evidence contextualizing the posts admitted into evidence. 

The presumptive accuracy and reliability of statements made in online spaces can and should be called into question by appropriately contextualizing the information and its production.    If this is not done, we run the risk of sarcasm, artistic expression, mere frustration or hyperbole resulting in the criminalization of individuals who are thoughtless rather than dangerous.