Category: Marketing & Communications

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CASL Consent Higher Ed Law Marketing & Communications Privacy

CASL at 10 – Terminology

This is part one of a multi-part series reviewing Canada’s Anti-Spam Legislation in practice since its introduction in 2014 and the beginnings of full enforcement in 2017. Crosslinks will be added as new parts go up.

Part 1: Terminology

Part 2: Parameters

Part 3: Big Numbers

Part 4: Case File – Compu-Finder

Part 5: Case File Anthology, 2015-2016

Part 6: Case File – Blackstone Education

Part 7: Case File Anthology, 2017-2018

Part 8: Case File – Brian Conley/nCrowd

Part 9: Case File Anthology, 2019-2022

Part 10: NOV – Sam Medouini

Part 11: Wrap-Up

Core resources:

The Act

Enforcement Actions Table (CASL selected)

CASL has been a subject of professional and personal interest to me for some time. I began working in higher ed marketing at around the same time as the legislation was introduced, and well in the groove when it came into full force. It made pretty much everyone in marketing — whether they were in for-profit, not-for-profit or charitable work — pretty anxious.

Almost 10 years later, it feels like a good time to see how it’s all playing out. I’ve been working on this at a fairly relaxed pace, so it’s conceivable that I might wrap this up for its 10th anniversary at this point.

Even as somebody who was passingly familiar with CASL for professional reasons going into this, I rapidly ran into a pretty fair-sized lexicon of terms and acronyms. Before we get into the meat of it, let’s get some acronyms and terms out of the way.

CRTC: The Canadian Radio-television and Telecommunications Commission. Responsible for broadcasting, Internet, and telephony in Canada. Very eager to point out that they “operate at arm’s length from the federal government” – it’s practically the tag line for the whole organization on their home page.1I can’t find any other federal commissions that do this. The Canadian Nuclear Safety Commission doesn’t do it, the Human Rights Commission doesn’t do it, the National Capital Commission doesn’t do it, the Truth and Reconciliation Commission didn’t do it… I could go on. I don’t want to sound conspiratorial out of the gate, but given how many criticisms the CRTC has seen for being connected to big telco companies, it’s interesting that the first words out of their virtual mouths are “we aren’t the government, guys!”

CASL: Canada’s Anti-Spam Legislation. The subject of these short essays. It was introduced in 2014, with a “transitional period” to July 1, 2017, when it came into full force.

CEM: Commercial electronic messages. Pretty much any electronic message (text, email) that promotes a product or service, with some clearly defined exceptions. We’ll unpack this more in the next post.

Investigative powers: Commission staff, who are persons designated by the Commission to conduct investigations, may use the following powers to investigate possible violations under CASL. These presumably lead to actions (see below).

  • Notice to Produce (NTP) – a notice served on a person requiring them to produce data, information or documents in their possession or control (additional information is available in section 17 of CASL);
  • Preservation Demand – a demand served on a telecommunications service provider requiring it to preserve transmission data in that is in or comes into its possession or control (additional information is available in section 15 of CASL); and
  • Search Warrant – a judicially pre-authorized warrant that authorizes designated persons to enter a place (business or dwelling-house) to examine, copy or remove documents or things (additional information is available in section 19 of CASL). 2Verbatim from the CASL FAQ at https://crtc.gc.ca/eng/com500/faq500.htm/

Action types: measures that CASL / the CRTC uses to reinforce compliance with CASL (as well as Unsolicited Telecommunications Rules (UTR) and the Voter Contract Registry (VTR)). Particularly pertinent for CASL:

  • Citation: a letter outlining alleged violations and an “opportunity to clarify”. Other than publishing the citation 30 days after issuance (absent a valid defence), there don’t seem to be any follow-on penalties to a citation. There’s only been one citation in CASL history to date (Orange Link Inc., details not available online).
  • Notice of Violation: sets out alleged violations, and may include an AMP (see below).
  • Compliance and Enforcement Decision (“Decision”): official decisions following the review of a Notice of Violation, Notice to Produce or Preservation Demand.
  • Undertaking: an agreement between a violating entity and Commission staff defining compliance obligations; can also include a payment amount.
  • AMP: Administrative Monetary Penalty. These are part of a Notice of Violation; a civil penalty imposed by a regulator. They can be appealed to the commission – this gets important later.

In the next post, we’ll start looking more at the early days of CASL, its remit governing Commercial Electronic Messages (CEMs), and what exactly CASL is, and is not, meant to enforce. It wasn’t quite what I always assumed it was; this might be true for you as well.

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Marketing & Communications

Public statements, policy, and moral courage

Something terrible has happened.

In a 24/7 global news cycle, we are all capable — if not always actively engaged — with knowing what is wrong in the world. This means a lot in higher education, which combines international presences with institutional commitments to both recognizing diversity and treating students with empathy and support.

When members of our community are suffering, they look to their institutions for support and understanding, particularly in a public context. A statement in support of their plight means a lot: it shows that the institution sees them, that it cares, and that it is on their side. “We stand with ________ during the __________” messages can mean a lot to the people affected. Doubly so in a lot of ways in higher ed, where a school can be an intrinsic part of one’s identity, above and beyond just a place you show up and take classes. Community, support and spirit are a core part of the value offering of colleges and universities, and the corollary of that is that the demand for emotional buttressing may be greater than one might expect from, say, a favourite fast food restaurant, day job or leisure activity.

Knowing that: why in the world would you not provide your commmunity with leadership, comfort, and goodwill in a time of need?

And I want to be clear here that I’m talking about things that are unambiguous. Tsunami-level disasters. Decrying tyrannical governments or full-on Nazis. This isn’t “take a stand on a highly contentious issue” territory where the risk is that 50% of people will disagree with you: this is “vaccines are good, the Earth is round, ethnic cleansing is bad” issues where sane humans are entirely on board and you can afford to discount the weirdos.

But even in those cases where you’re making a public comment on a fully realized issue that 99% of humanity will back, there are reasons not to do it.

The first is that any comment on that isn’t completely in the ambit of your core mission represents a deliberate choice to make a purposeful statement. It therefore implies choices to not comment on other issues. Speaking out on Issue A is a positive act of support for Issue A, but can be read by people affected by Issue B — for which no statement has been made — as disinterest in what affects them.

I’m defining “core mission” here as (in a higher ed context) things that in the first order directly affect the school and its community; in the second order, things that affect its educational or research mandate, or have a profound impact on the industry/sector that the primary subject of teaching/research focuses on.

I’m never sure if diagramming things is helpful, or just opens me up for trouble by oversimplifying some pretty complex and nuanced stuff.

Once you’ve commented on Issue A, subsequent calls for more statements are harder to resist, because there’s now a legitimate area for complaint: if you support this part of the community, why don’t you equally support this other part?

Once you’ve broken the “speak on subjects outside of the core mission” seal, there are three paths:

  1. Rare statements based on what the administration feels is important, but without a formal policy or guidelines on when a statement should be issued.
  2. More statements — either on demand whenever a concern is raised or proactively when something that might affect the community is noticed.
  3. Development of a policy or guidelines that clearly identify what circumstances should generate a statement of support, with statements only issued when the policy supports it.

The first is the default; it’s the status quo, and frankly, it’s… probably fine? I haven’t noticed our institutions crumbling to dust around us. Issues with this approach manifest themselves chiefly in planning — it’s hard to know when the call will be made, and what kind of a statement and what kind of distribution will be desirable. The other is the spectre of bias and resulting reputational risk: why did you speak up to support group A and not group B? Why do you care about issue Y and not issue Z?

These play out internally, for the most part. There’s an ever-present risk of getting a black eye on social media over supporting A but not B. Since there’s already commenting on A, and no policy in place, it’s a legitimate question, which makes public criticism more pointed. That leads to a temptation to just speak on Issue B as well. And over time, this can lead to…

The second path — lots of statements, without a clear policy on why and when they’re being issued. This is the least good option; the more an insitution diverts itself to talking about things fundamentally unrelated to its core mission, the more it is diluting its own message and purpose. Which, in at least the case of higher education, are things that are also worthy of support: research, education. There’s also a question of what message this sends internally — if the institution we’re looking to for stability and support is constantly reminding us of crises and tragedy, even through support messages, what does that do to people who want safety and steadiness in the world? This is almost an inevitable path to…

The third path — policy. Which provides clarity, but ultimately opens the institution up to the same criticisms as the first path, with the additional disadvantage that somebody has actually sat down and tried to write out a formula that quantifies human suffering. Does one measure the “statement-worthiness” of an issue by deaths? By trauma? By the percentage of the community it affects? Who drafts it? Who approves it? How and where is it published to refer to, and who handles complaints about the policy? On its face, “write policy” seems like a straightforward path, but it’s a fraught one.

Ultimately the three paths are two: infrequent/frequent ad hoc statements, or a single policy-driven approach.

And that brings us to moral courage.

Two flavours of it.

The first is sticking to the “official statements in our area of expertise” guns. No matter what happens in the world, in scope or scale, you just adhere to the non-policy of speaking only on issues that affect your core mission.

The second is feeling moved to comment on something outside your remit, knowing this may lead to accusations of unfairness, difficult-to-navigate conversations about statements on other issues, and public pressure from people pro- and anti- whatever you are commenting on… and doing it anyway.

Both represent a kind of fortitude; both are about a willingness to have hard conversations about difficult topics, and possibly suffer some public lambasting regardless on where you fall on the issues.

The first gives you an easy response (if sometimes tough conversations) to requests for statements. The second leads to challenging responses to the same questions — but is also for something.

My own thinking on this has been, frankly, muddy. I feel like I’ve been slowly sloughing through the practical, moral, and logistical issues around public statements for years, and have been very slow in coming to a conclusion that people with a stronger moral compass than I have probably would get to a lot quicker:

Some things are worth the risk.

The institution-only statement path is one that is simple and easy to follow. It’s driven by clarity, but also, it could be argued, by fear: we don’t want to deal with the risk of these other conversations about fairness; we are anxious about being driven down paths where we have to publicly navigate questions about what and who we support, and why.

As a naturally risk-averse person, I fully identify with the anxiety.

Which is why I’ve come to appreciate the statement-makers more of late: I don’t think they’re ignorant of the risks above (although they may not have ever articulated them like this). I think they are just okay with them.

I’m very slowly reversing gears on a long tradition of counsel to just stick to the institutional mission and not colour outside the lines. I think — if the risks are known, and accepted — it’s more courageous to take the risky statement route than not.

This is possibly a very long walk to cover a very short distance, but hopefully it lands with somebody who’s going through the same slow slog I’ve been undergoing for the last few years.

Categories
Marketing & Communications

Catching up with CASL

(insert castle-themed pun here)

Busy times here, with work picking up a tremendous amount of steam on the undergraduate recruitment front, Homecoming around the corner and some new members being added to the Engineering marcomms unit this week.

A placeholder here to say that I am chipping away at something I’m pretty happy with — an analysis of CASL undertakings and decisions since they started publishing them in 2018. This started as something fairly work-related around the parameters of what qualifies as a CEM (commercial electronic message) and specific rules around subscription/unsubscription when a business relationship is ongoing or renewed, but it’s turning into something a bit more interesting.

Stay tuned, basically.

Categories
Marketing & Communications

Dramatis Personae in legal decisions

Now that the Master’s is done (surreal!) and I’ve had a few months of watching dumb horror movies, reading comics and playing various flavours of Magic: The Gathering online, I’m starting to poke at self-directed legal research again.

I’m starting with picking up my rejected original premise for my Master’s — puffery is fascinating, by God, and I will not be deterred from poking at it with a big dumb stick even if no serious legal academic on the planet thinks it’s worth doing.

But — as somebody who is eminently easily distracted — I almost immediately got detoured into interesting turns of phrases in some of the cases I was reading in CanLII where puffery is mentioned.

One of these,

Alcamo v. Walt, 2022 ONSC 1913 (CanLII)1https://www.canlii.org/en/on/onsc/doc/2022/2022onsc1913/2022onsc1913.html is a riveting read in and of itself. But I was immediately struck by the use of the phrase Dramatis Personae, which I’d never seen in a legal decision before, to establish the various parties in the case. A quick search of CanLII later, and there are only 49 decisions in the database (which only reaches back to the early 2000s, but still, it’s 18+ years and 3,000,000+ decisions) that use that specific string.

What are they, and who are they by? There’s only a trickle before 2008, and then they start occurring more frequently…

2008

Fantl v. Transamerica Life Canada, 2008 CanLII 17304 (ON SC)2https://www.canlii.org/en/on/onsc/doc/2008/2008canlii17304/2008canlii17304.html
Perell J

2010

Alberta (Child, Youth and Family Enhancement Act, Director) v. Z.G., 2010 ABPC 7 (CanLII)3https://www.canlii.org/en/ab/abpc/doc/2010/2010abpc7/2010abpc7.html
A.H. Lefever

Steinhoff (Re), 2010 IIROC 8 (CanLII)4https://www.canlii.org/en/ca/caiiroc/doc/2010/2010iiroc8/2010iiroc8.html
Getz, Lay, Treatro

Galustian v. Skylink Group of Companies Inc., 2010 ONCA 645 (CanLII)5https://www.canlii.org/en/on/onca/doc/2010/2010onca645/2010onca645.html
Watt JA

2011

R. v. Bayani, 2011 ONSC 5225 (CanLII)6https://www.canlii.org/en/on/onsc/doc/2011/2011onsc5225/2011onsc5225.html
R. Clark J

2012

T.F. (Re), 2012 ABPC 5 (CanLII)7https://www.canlii.org/en/ab/abpc/doc/2012/2012abpc5/2012abpc5.html
Steven E. Lipton

McSherry v. Zimmer GMBH, 2012 ONSC 4113 (CanLII)8https://www.canlii.org/en/on/onsc/doc/2012/2012onsc4113/2012onsc4113.html
Perell J

Arora v. Whirlpool Canada LP, 2012 ONSC 4642 (CanLII)9https://www.canlii.org/en/on/onsc/doc/2012/2012onsc4642/2012onsc4642.html
Perell J

2013

Sekhon v. Aerocar Limousine Services Co-Operative Ltd., 2013 ONSC 542 (CanLII)10https://www.canlii.org/en/on/onsc/doc/2013/2013onsc542/2013onsc542.html
Perell J

D.J. (Re), 2013 ABPC 99 (CanLII)11https://www.canlii.org/en/ab/abpc/doc/2013/2013abpc99/2013abpc99.html
Steven E. Lipton

2014

R v Fast, 2014 SKQB 84 (CanLII)12https://www.canlii.org/en/sk/skqb/doc/2014/2014skqb84/2014skqb84.html
Danyliuk J
“This case is about unscrupulous business practices, criminal schemes to make money, greed, and human nature.” — hot dang I like it when the justices get a little Grishamy in their headnotes.

Fontaine v. Canada (Attorney General), 2014 ONSC 4585 (CanLII)13https://www.canlii.org/en/on/onsc/doc/2014/2014onsc4585/2014onsc4585.html
Perell J

2015

R v. Beauchamp, 2015 ONCA 260 (CanLII)14https://www.canlii.org/en/on/onca/doc/2015/2015onca260/2015onca260.html
Cronk, Blair and Watt JJ.A.

2016

Pev International Research & Development Incorporated (Re), 2016 NSUARB 88 (CanLII)15https://www.canlii.org/en/ns/nsuarb/doc/2016/2016nsuarb88/2016nsuarb88.html
Roberta J. Clarke, Q.C., Member

Kowalyshyn v Valeant Pharmaceuticals International, Inc., 2016 ONSC 3819 (CanLII)16https://www.canlii.org/en/on/onsc/doc/2016/2016onsc3819/2016onsc3819.html
Perell J

Dhudwal v. Canada (Citizenship and Immigration), 2016 FC 1124 (CanLII)17https://www.canlii.org/en/ca/fct/doc/2016/2016fc1124/2016fc1124.html
Mr. Justice Harrington

2017

907687 Ontario Inc. (International Institute of Travel) v. 1472359 Ontario Ltd (IBT College of Business Travel & Tourism Technology), 2017 FC 969 (CanLII)18https://www.canlii.org/en/ca/fct/doc/2017/2017fc969/2017fc969.html
Fothergill J

2018

4075447 Canada Inc v Pacrim Developments Inc, 2018 ABQB 358 (CanLII)19https://www.canlii.org/en/ab/abqb/doc/2018/2018abqb358/2018abqb358.html
Robertson AR QC

Hallman Construction Ltd. v Cambridge (City), 2018 CanLII 70303 (ON LPAT) [Local Planning Appeal Tribunal]20https://www.canlii.org/en/on/onlpat/doc/2018/2018canlii70303/2018canlii70303.html
Swinkin, Douglas – Tribunal members

2019

Fortress Carlyle Peter St. Inc. v. Ricki’s Construction and Painting Inc, 2019 ONSC 1507 (CanLII)21https://www.canlii.org/en/on/onsc/doc/2019/2019onsc1507/2019onsc1507.html
Perell J

Signature Realty Inc. o/a Royal Lepage Signature Realty v. Fallico, 2020 ONSC 1117 (CanLII)22https://www.canlii.org/en/on/onsc/doc/2020/2020onsc1117/2020onsc1117.html
Perell J

Children’s Aid Society of Algoma v. L.G., 2020 ONCJ 297 (CanLII)23https://www.canlii.org/en/on/oncj/doc/2020/2020oncj297/2020oncj297.html
Kukurin J

2021

Peters v. SNC-Lavalin Group Inc., 2021 ONSC 5021 (CanLII)24https://www.canlii.org/en/on/onsc/doc/2021/2021onsc5021/2021onsc5021.html
Perell J

Barkley v. Tier 1 Capital Management Inc., 2022 ONSC 175 (CanLII)25https://www.canlii.org/en/on/onsc/doc/2022/2022onsc175/2022onsc175.html
Perell J

2022

Fehr v. Gribilas, 2022 ONSC 275 (CanLII)26https://www.canlii.org/en/on/onsc/doc/2022/2022onsc275/2022onsc275.html
Perell J

Riha v. A. Wilford Professional Corporation, 2022 ONSC 1110 (CanLII)27https://www.canlii.org/en/on/onsc/doc/2022/2022onsc1110/2022onsc1110.html
Perell J

Alcamo v. Walt, 2022 ONSC 1913 (CanLII)28https://www.canlii.org/en/on/onsc/doc/2022/2022onsc1913/2022onsc1913.html
Perell J

Park Lawn Corp. v. Kahu Capital Partners Ltd., 2022 ONSC 3341 (CanLII)29https://www.canlii.org/en/on/onsc/doc/2022/2022onsc3341/2022onsc3341.html
Perell J

Raponi v. Olympia Trust Company, 2022 ONSC 4481 (CanLII)30https://www.canlii.org/en/on/onsc/doc/2022/2022onsc4481/2022onsc4481.html
Perell J

The attentive reader will notice a trend — Perell J, whose Alcamo decision got me on this groove in the first place, holds the strong plurality for the use of the phrase. It also seems to come up in Alberta more than anywhere else after Ontario (on review, it looks like almost all ON, several AB and a single SK use).

On Perell J’s frequent use, it occurred to me that I’m not a lawyer and will not be one; I’ll never appear before Justice Perell in court as a lawyer (and hopefully not in other contexts). I’m not a full-time legal academic. I’m just a curious person with a lot of intersecting interests in law. So I don’t really have to worry about my reputation or what he thinks of me.

So I emailed him to ask why this turn of phrase? Because I find it accessible, engaging, and even narratively strong. But it also feels a bit flip, and even cynical, to position the people on both sides of a legal dispute as “actors”. It’s a curious phrase, and it made me curious.

If he writes back, and is inclined to give me permission to share his thoughts on the use of the phrase, I’ll update here. If not, so it goes — a passing observation.

Update: he wrote back! About two days after I emailed, actually.

A really nice note from Justice Perell but without permission to reproduce, so to paraphrase, it’s not intended to be cheeky, but a recognition that litigation is inherently dramatic as something grounded in dispute, with dramatis personae a useful term of art to introduce not only litigants but all others involved in the story.

It was gratifying, and a bit thrilling, to hear back. Dramatis personae!

  • 1
    https://www.canlii.org/en/on/onsc/doc/2022/2022onsc1913/2022onsc1913.html
  • 2
    https://www.canlii.org/en/on/onsc/doc/2008/2008canlii17304/2008canlii17304.html
  • 3
    https://www.canlii.org/en/ab/abpc/doc/2010/2010abpc7/2010abpc7.html
  • 4
    https://www.canlii.org/en/ca/caiiroc/doc/2010/2010iiroc8/2010iiroc8.html
  • 5
    https://www.canlii.org/en/on/onca/doc/2010/2010onca645/2010onca645.html
  • 6
    https://www.canlii.org/en/on/onsc/doc/2011/2011onsc5225/2011onsc5225.html
  • 7
    https://www.canlii.org/en/ab/abpc/doc/2012/2012abpc5/2012abpc5.html
  • 8
    https://www.canlii.org/en/on/onsc/doc/2012/2012onsc4113/2012onsc4113.html
  • 9
    https://www.canlii.org/en/on/onsc/doc/2012/2012onsc4642/2012onsc4642.html
  • 10
    https://www.canlii.org/en/on/onsc/doc/2013/2013onsc542/2013onsc542.html
  • 11
    https://www.canlii.org/en/ab/abpc/doc/2013/2013abpc99/2013abpc99.html
  • 12
    https://www.canlii.org/en/sk/skqb/doc/2014/2014skqb84/2014skqb84.html
  • 13
    https://www.canlii.org/en/on/onsc/doc/2014/2014onsc4585/2014onsc4585.html
  • 14
    https://www.canlii.org/en/on/onca/doc/2015/2015onca260/2015onca260.html
  • 15
    https://www.canlii.org/en/ns/nsuarb/doc/2016/2016nsuarb88/2016nsuarb88.html
  • 16
    https://www.canlii.org/en/on/onsc/doc/2016/2016onsc3819/2016onsc3819.html
  • 17
    https://www.canlii.org/en/ca/fct/doc/2016/2016fc1124/2016fc1124.html
  • 18
    https://www.canlii.org/en/ca/fct/doc/2017/2017fc969/2017fc969.html
  • 19
    https://www.canlii.org/en/ab/abqb/doc/2018/2018abqb358/2018abqb358.html
  • 20
    https://www.canlii.org/en/on/onlpat/doc/2018/2018canlii70303/2018canlii70303.html
  • 21
    https://www.canlii.org/en/on/onsc/doc/2019/2019onsc1507/2019onsc1507.html
  • 22
    https://www.canlii.org/en/on/onsc/doc/2020/2020onsc1117/2020onsc1117.html
  • 23
    https://www.canlii.org/en/on/oncj/doc/2020/2020oncj297/2020oncj297.html
  • 24
    https://www.canlii.org/en/on/onsc/doc/2021/2021onsc5021/2021onsc5021.html
  • 25
    https://www.canlii.org/en/on/onsc/doc/2022/2022onsc175/2022onsc175.html
  • 26
    https://www.canlii.org/en/on/onsc/doc/2022/2022onsc275/2022onsc275.html
  • 27
    https://www.canlii.org/en/on/onsc/doc/2022/2022onsc1110/2022onsc1110.html
  • 28
    https://www.canlii.org/en/on/onsc/doc/2022/2022onsc1913/2022onsc1913.html
  • 29
    https://www.canlii.org/en/on/onsc/doc/2022/2022onsc3341/2022onsc3341.html
  • 30
    https://www.canlii.org/en/on/onsc/doc/2022/2022onsc4481/2022onsc4481.html
Categories
Marketing & Communications

The most savage takedown in ag fair history

I’m mainly just posting this so I can share this image in a discussion about agricultural fair dominance over at MetaFilter.

What’s going on here? It seems that there was one entrant in the Peanut Butter Cookie category, and the panel of judges awarded it second place.

Let that sink in for a second. What it means.

It means that — in the opinion of the Kingston fair judges — the absence of a cookie is a superior option to this cookie. That if somebody presented this cookie to them and said “do you want this cookie?” the answer would not be a polite “no thank you”, but a dead-eyed glare and “I abjure this cookie” delivered in a monotone.

They could have just given the only entrant first prize. By default. If there’s a single racer in the race, they win the race. If there’s one apple in the bowl, it’s the best apple in the bowl. This is how these things generally go.

But this was a deep ontological choice to award nothingness a higher status than this cookie. The judges, in their wisdom, effectively told poor Yvonne Brownlee that she had created the anti-cookie, a cookie that inverts the very idea of cookiehood.

This feels harsh. Maybe the judges were having a bad day.

But I think of this cookie more often than I expected when I first saw it. A reminder that the only option can still be rejected, that just because there’s only one path ahead of you there’s still another option: reject the premise.

So — whatever the merits or flaws of this peanut butter cookie — I respect and appreciate that you went in there swingin’, Yvonne. Thank you, and thank your cookie.

Categories
Marketing & Communications

A note on puffery

Not much time for blogging these days as I struggle to edit my LLM thesis (I’ve discovered through the process of pursuing the Master’s in Law that a 25-year career in journalism and marketing gives one a rich sense of strategy, narrative and storytelling purpose, but is in some ways antithetical to writing for legal academia).

I do still hang out on MetaFilter quite a bit, though, and since somebody brought up the famous Pepsi Harrier case on there the other day, wrote up a quick bit on puffery, partly in response to an earlier “all advertisers are liars amirite?” comment.

It’s not comprehensive, but it has potato chips in it:

Hey, puffery!

I got into my LLM (Master’s in Law) program wanting to use puffery as my general topic for exploration, but my thesis supervisor felt it was “settled” law in the sense that it just kind of… works, generally, and there isn’t an urgent problem to be addressed.

As advil says above, it’s not “advertisers get to lie because people know advertisers lie”, the general principle is oriented more around the idea of reasonable personhood*, and the idea that you can state something so outrageous that a reasonable person would not believe it.

This is why there are no court cases where people are suing Skittles because they bought and opened a bag of Skittles and a unicorn did not run into the room and touch their couch with its horn and turn it into Skittles like in the ad. It’s why a pizza joint on the radio can say they have the best slice in town without having to present 40 pages of quantitative data first defining “best” in the context of pizza and then what exactly makes their pizza “the best.”

But there’s a thin edge to puffery; recent examples include an attempted class action suit because Hawaiian potato chips are not made in Hawaii, or an attempted class action suit that TGI Fridays potato skin chips are not made from potato skins but seasoned like the restaurant’s potato skin dish.

(I swear puffery is not all potato chip law, I just found the Hawaiian thing while struggling to recall the TGIF thing).

Like howfar says, its roots are in contract law (like the Pepsi example above, or pretty much any time an end consumer brings suit) but legal issues over puffery often cross over into competition law or advertising regulatory bodies where companies will go after each other because they feel another company’s puffery is edging over into falsehood instead of easily recognizable exaggeration.

I regret not being allowed to pursue it as an LLM topic, but (as I have learned, slowly and with great pain) good legal writing tends to be more about an imminent problem in law that requires an urgent solution and some ideas on how to address it, and not just pointing at weird stuff and going “hey, that sure is weird.” Puffery is weird! But it’s not a problem that the courts traditionally have a problem dealing with; it comes down to some judgment calls among the judiciary and sometimes judges get things wrong, but on the whole it’s a pretty understood area that’s relatively easy to navigate.

*but “reasonable personhood” is an amazing topic for exploration, because immense amounts of law rely on this vague cultural idea of “the man on the Clapham bus”, and it’s only in the last couple of decades that people have started to really look at that and go “wow, that’s a super colonial, neurotypical, able-bodied framing that kind of sucks.” If you want a great read on the subject, Rethinking the Reasonable Person is a dynamite monograph by Mayo Moran that meticulously unpacks so much that is horribly wrong with how reasonable personhood is constructed.

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Marketing & Communications

Robot Rock: software-generated works and copyright

Robot makes music

I wrote this blog post to answer a colleague’s question about copyright for the music for the Microsoft Photos app.

He followed up to ask:

What if the music was created by a machine? The specifics of the track changes based on the time you set for the audio. So the music you end up using is compiled by the machine and not a person. Does that make a difference?

Once again, I am not a lawyer and this is not legal advice.

Software is copyright protected (the code is considered ‘writing’ in the same way that a novel is writing (you can’t copyright a process, but you can copyright how you describe it, which is kind of what code is considered)). So there are two possibilities here:

  • The software is creating the music from scratch: it’s programmed with an understanding of scales, chords and instruments. In this case, copyright in what it produces might be the copyright of the software author (see further down); or
  • The software is a lot simpler and is merely truncating or time-shifting music “stems,” which were written by a human, and all the software is doing is looping/speeding up/slowing down (chopping and screwing, as the kids say). In which case I think the copyright would reside with the music author. 

I suspect Photos is the latter, and copyright in this instance is with whoever wrote the tunes that Photos is using, regardless of how Photos is messing with the music when you’re playing with it.

Making things worse, music copyright also breaks down into author, performer, and performance copyright elements; I’m really talking about the authorship question here, but performance rights would also depend on whether this ia a modified piece of existing performed music (it’s chopping and screwing an MP3) or if the music is generated by the software. Music copyright is just the worst.

Pertinent to Ingenuity Labs, though: there’s no AI/art jurisprudence in Canada, but literally a few weeks ago the U.S. Copyright Review Board refused to grant copyright to a “true” AI-generated piece of visual art: Paradise Lost: Art Created by AI Is Ineligible for Copyright Protection | McDermott Will & Emery – JDSupra. The US is not Canada, but it’s a common law jurisdiction like Canada and a very influential one, so barring any radical departures elsewhere in the Commonwealth it would likely be what courts here would hew to.

This is where I don’t know as much as I could — I don’t know what distinguishes an “AI” from “normal” software. The decision here is based on there being no human involved in the actual creation; humans being assisted by AI in the creation of works would still hold copyright in those works.

So even in the first example above (a piece of software generating something), I don’t know at what point it’s an “AI”, or when it’s “just software” and the software author would hold copyright.

I also don’t know where the threshold of “AI” and “human assisted” is: depending on the thought and complexity you have to put into the AI for it to generate something, you might cross a legal barrier where on one side you’re a human that’s putting enough creative complexity into the system that you’re still the author; on the other side it’s just the AI at work.

Per the US decision above, a human has to be at the origin of the work for there to be copyright in it: the AI can’t be an author (nor can an AI perform ‘work for hire’ (which is again not a thing in Canada, exactly) since it is not capable of meaningfully entering a contract).

While this is all fun to unpack, ultimately the prior thing holds — if there’s no specific term-of-service language granting you a non-exclusive license to use the asset, it’s just not safe to use.

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Marketing & Communications

Microsoft Photos, Music, and Copyright

I am baffled by music copyright issues
Music copyright is a snake pit, and this is no exception.

A colleague asked me for my opinion on the use of music provided within the Microsoft Photos app (bundled with Windows 10/11) the other day, and what I thought was a simple question turned kind of complicated.

Let’s start off by saying I’m not a lawyer and this is not legal advice. And my knowledge of copyright law is that of a punter who’s taken some classes, not somebody who actually works daily in the field and knows it inside and out. I know more than the average person, but I’m neither a copyright lawyer or an academic.

To the best of my knowledge, then:

Can you use the background music provided by Microsoft as part of the Windows-bundled Photos app in your public-facing productions?

The quick answer — the safe answer — is “no.”

As a general rule, if you cannot find language that specifically talks about non-exclusive licensing and allows you to use bundled assets in public-facing work, it’s not a good idea to do it.

There are no shortage of people on the Microsoft (and other) forums asking this exact question about the rights to music bundled with Windows default apps:

https://answers.microsoft.com/en-us/windows/forum/all/do-i-have-permission-to-use-the-music-included-in/c578ca2f-ffd5-4594-a3dc-d54edae5f796


https://answers.microsoft.com/en-us/windows/forum/all/is-the-music-in-microsoft-photos-app-royalty-free/827b2eb6-773c-40d2-b64f-80ee2d725137

From these threads, we can get down into the tremendously unhelpful copyright agreements that Microsoft provides to end users:

https://www.microsoft.com/en-us/legal/intellectualproperty/copyright

This page covers copyright in general, but does not include any information on copyright (or use or licensing) of content that Microsoft provides through its software. If you’re looking for more pretty useless information about copyright and the use of MS products, they have you covered:

https://www.microsoft.com/en-us/legal/intellectualproperty/copyright/permissions


https://www.microsoft.com/en-us/legal/intellectualproperty/copyright

As a point of contrast, here’s a quick example of a similar service that does have some language that seems to make it possible to use their assets.

YouTube makes their copyright conditions clear for the “YouTube Audio Library” — right in the banner image for the Library. It’s not great for accessibility, but the language is right there!

https://www.youtube.com/c/AudioLibraryEN/playlists

You can also find some copyright information at https://support.google.com/youtube/answer/3376882. As it says there,

“Music and sound effects from the YouTube Audio Library are copyright-safe. The Audio Library is found exclusively in YouTube Studio.”

“Copyright-safe” is not a term found in either Canadian or US copyright law, so it’s annoyingly vague to try to guess what it means, exactly. But at least it’s somewhat clear; they also include parameters in the description of each track, such as:

https://www.youtube.com/watch?v=Jx8ls-Y-Keg

“You’re free to use this song and monetize your video, but you must include the following in your video description:
Be sure to attribute the artist.
Music ⓒ – Audionautix”

This is similar to a lot of creative commons language, and is easy to understand and follow. There might be something in there a copyright lawyer could pick apart, but it’s solid footing.

Not so with Microsoft Photos. You’re at sea about whether or not you can use the music they put right there in your hands and encourage you to adopt for your projects.

On its face, this feels wrong… right?

If you’re being given the music with the software, and the software is supposed to let you create photo galleries and movies that you can share, it only stands to reason that you’re allowed to use that music.

While this is probably the case — it’s hard to imagine Microsoft going after people who do this, for PR reasons, if nothing else — that’s still not the law.

Essentially, somebody made that music, and somebody owns the copyright for the music.

It might be an individual, or it might be a company or a client they work for. The law is a bit different in Canada and the US about how “work for hire” functions.

But any way you slice it — somebody owns the copyright to the music, and unless there is something in writing that attributes to you the right to use the music… you don’t have the right to use the music. There is no such thing as an “implied” license. Some cursory poking around at sublicenses doesn’t show much in this space; this isn’t extensive research, and again, there may be experts who know more about this than I do at present, but there’s certainly no obvious and accessible jurisprudence granting exemptions for copyright infringement because a piece of software made it easy or convenient to infringe.

And underneath the surface, there’s not a lot of transparency about where the music in the Photos app comes from. Maybe somebody at Microsoft composed and recorded and produced it, and Microsoft owns it all, lock stock and barrel.

But maybe somebody has licensed it to Microsoft, and that license might change or expire, which means the sublicense (which, I want to be clear, DOES NOT EXIST, we’re just playing around here) that Microsoft grants to the Photos app user would then also expire.

TLDR: if you can’t find up-front and easy-to-understand language in an app or software’s terms of use that explicitly tells you how you can and can’t use assets that come with the app — best not to use them. The chance of a negative outcome might be low, but you’re sailing in uncharted waters.

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Marketing & Communications

Beware the plug-in!

A quick note about something, er, noteworthy: those in the public sector should be aware of a recent IPC decision regarding the Halton School Board and its use of browser plugins without adequate vetting and consent.

Higher ed is more my jam than primary or high school, and minors factor less prominently in that space, but still worth observing that the Information and Privacy Commissioner has called Halton School Board on the carpet for the use of browser plugins for educational purposes.

Colleges and universities normally have fairly strong authorization-to-operate processes, and most major software and SAAS is vetted and reviewed by both IT teams and counsel to be sure it’s up to snuff. But this exposes an interesting area of vulnerability that we don’t often think of; institutions may be recommending or even mandating bolt-ons to services that have not been evaluated and collect information in ways that contravene MFIPPA, FIPPA or your privacy legislation of choice.

As I type this, I’m eyeing Zotero and the Zotero browser extension icon in front of me with some suspicion. I’m sure it’s kosher, but as a tool strongly recommended (but not mandated!) for my graduate studies, how has it been vetted? What information is it collecting? And if the rubber hits the road, what’s my institution’s responsibility in encouraging me to adopt it?

Whether minors being watched out for by their guardians or adults looking out for their own interests, there’s an interesting wedge of privacy concerns here that I suspect are underbaked when we look at building cutting-edge pedagogical processes for students.

Categories
Higher Ed Law Marketing & Communications Photography Privacy

The Bay and Appropriation of (Black) Personality for the “Charter for Change”

So The Bay fisked up.

As seen on Twitter, and then reported on, they used a photo of a Black person without their consent as part of a campaign for their “Charter for Change” marketing program. Not great — and compounding the mistake, it was a photo of Hadiya Roderique, a well known Black lawyer (not currently practising, but a JD is a powerful thing) and activist championing marginalized voices.

She called them out on Twitter, they replied, acknowledged the error, and removed the photo. Which seems to have satisfied Roderique, per the CBC article, although she’s hoping for the Bay to make a financial contribution to a Black or Indigenous organization (although that seems to more or less be the goal of the Charter for Change program in the first place).

What went wrong?

The cascade here is pretty much what I guessed when it broke. Extrapolating some probable steps, based on my own past in agency work for national/multinational clients: an agency grabbed photos online as part of a pitch, probably one among a batch of concepts they were presenting. Pitch was approved, and somebody went ahead with the pitch concept without doing the due diligence of talking to the original creative team to make sure the right permissions were in place.

And here we are. The Bay has apologized, the photos are taken down, more attention has been brought to the issues of using marginalized peoples’ work without credit or compensation.

But what would Roderique’s options have been had the Bay been obstinate about the whole thing? Or if she decided that the Bay’s takedown and apology wasn’t good enough, and wanted to see how far she could push the issue in the courts?

Never a bad time to mention: I am not a lawyer, and this is not legal advice.

Banjo/lyrics me, vocals Greenish, and video from Donghu Jung, Madison Inouye, Sora Shimazaki (Pexels) and Stefania Buzatu (Pixabay)

This is a situation where the PR and public shame levers were the best ones to pull — because however you choose to push this to the courts, it’s unlikely that there would have been financial penalties to The Bay that would affect it in a meaningful way.

The copyright angle:

First, there’s the question of using the photo as a creative work without permissions. As Roderique establishes in the Twitter thread, it seems like the copyright is held by another photographer, and not Roderique or the Globe and Mail (where the photo first appeared); likely it was taken by the photographer and licensed to the paper.

Assuming my read of Roderique’s presentation of the photo copyright in the Twitter thread is correct, Roderique herself has no claim here: while she’s the subject of the photo, the right in the artistic work resides with the creator (photographer).

If the copyright holder — assuming photographer, and not the Globe — pursued this, awards for this kind of violation have been historically fairly low; generally about what the photographer would normally charge to license a photo, or an industry-standard amount; figure around $5,000. 1See Chung v Brandy Melville, with the caveat that this is also a case from Quebec’s civil system, albeit one that draws on the federal Copyright Act Amounts that I wouldn’t want to pay for a candy bar, but not exactly bringing a department store chain to its knees.

Personality rights:

This is where Roderique herself could look at actions. Publicity / personality rights aren’t that well established in Canada. Where they have been taken to court in the past, it’s usually been in the context of a public figure, such as Bob Krouse or the estate of Glenn Gould, pursuing claims (and — worthy of mention — neither succeeded). Roderique herself is not an unknown person in Canada, but it would be tenuous to say that she has the kind of fame that would make The Bay’s use of her photo qualify as “passing off” — using her name/image as an implicit endorsement of their program based on general recognition of who she is.

BC, Manitoba, Newfoundland and Saskatchewan all have provincial acts that forbid the use of one’s likeness without permission in advertising, but that doesn’t exist in Ontario, and isn’t captured in federal legislation. Since Roderique is in Ontario, and (likely) The Bay is headquartered in Ontario, there probably isn’t much there.2It’s worth noting that at least at the small claims level, a court has recognized appropriation of personality and awarded a nominal amount — $100 — in Vanderveen v Waterbridge Media. So from a precedent perspective, it’s in the books, so to speak.

Success is less assured here. Working through a set of factors defined by Amy Conroy of the University of Ottawa in 20123Amy Conroy, “Protecting Your Personality Rights in Canada: A Matter of Property or Privacy?”, Western Journal of Legal Studies, Vol. 1 Issue 1, there are a number of escape hatches for The Bay: Roderique’s relative lack of fame (while she’s well known in some circles, she’s not a public figure to the point that you can immediately profit from her notoriety and likeness), the fact that this is to support a charitable endeavour by The Bay and not direct profit for the company (there’s an argument that can be made here about the marketing/PR value of the campaign for the company’s bottom line, but the campaign is ostensibly about them giving money to charities to support marginalized peoples).

PIPEDA and the OPC:

This is pretty tenuous, but arguably — as Roderique is recognizable in the photo — it constitutes a ‘record’ per PIPEDA’s definitions. You could conceivably pursue a claim with the Office of the Privacy Commissioner about the unauthorized exposure of this record as a privacy violation per PIPEDA.

There, however, the chain of actions in a complaint filing literally makes “Give the organization a chance to address your concern” the second step in the process.4“File a complaint about a business,” Office of the Privacy Commissioner of Canada When this was brought to their attention The Bay apologized and struck the image both online and in stores, which historically has been seen as a satisfactory resolution for the OPC.

Public Relations vs. Public Relations

It doesn’t take a genius to work out what’s been happening in The Bay’s boardrooms: somebody at some point realized that having a company whose entire history stems from the Colonial exploitation of Indigenous trappers might be problematic. Whether you take a cynical or positive view of this whole “let’s re-invent this whole Charter business” in a direction that drives money to marginalized groups, it’s fundamentally all about addressing that Hudson-sized skeleton in The Bay’s closet.

So calling them out — loudly and publicly — on how they’re building this make-good campaign on the backs of underrepresented people, and exploiting their images to make up for a history of exploitation — a sound, savvy move.

PR damage is the worst damage in this scenario. Quietly pursuing them on legally protected grounds would not be fruitless — if you have time and energy, you’d be putting them in a position where they’d be sinking tens of thousands of dollars in executive time and legal costs to mount a defense that they might lose.

The odds of doing significant financial damage to The Bay are minimal, but drawing public attention to this as a major PR misstep has been a success. Whether you’re taking a sincere or cynical view of The Bay’s “charter re-invention” project, drawing attention to the irony here was an entirely appropriate thing to do.

Would they have reacted with the same speed if it were not a notable Black woman with a law degree and a significant Twitter following? There’s no A/B test for the universe, so again, it falls to whether you’re taking a sincere or cynical view of the campaign’s genesis, management, and intentions.