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Internet - General. Teksavvy Solutions Inc. v. Bell Media Inc.
In Teksavvy Solutions Inc. v. Bell Media Inc. (Fed CA, 2021) the Federal Court of Appeal upheld a 'site-blocking' injunction against third party ISPs, barring their customers from accessing copyright-infringing content [paras 18-32]. The case also consider the Telecommunications Act role in this, finding that the Act's net-neutrality is not infringed by the common carrier where the court makes such an order [paras 33-44].
. R. v. Ramelson
In R. v. Ramelson (SCC, 2022) the Supreme Court of Canada engages in an interesting analysis of the internet in the course of an entrapment criminal case:(2) Online Spaces
[42] Like any evolving technology, even an expansive definition of the Internet risks a quick obsolescence. And over time, the Internet has proven to be many things: social and anti-social, informative and mis-informative, and marked by clusters of hyperactivity and landscapes of inactivity. Still, some general features can be identified.
[43] While sustained by a vast physical infrastructure, the Internet, at least as most users experience it, is first and foremost a network of information and a means of connecting with others. That information is stored on servers but is accessible from an increasing array of devices in many physical locations. To say that individuals gather in online “spaces” means only that people have accessed shared information, wherever they happen to be geographically — which, today, may be from nearly anywhere.
[44] Freed of geographical constraints, online spaces permit unique experiences. They are permeable, allowing users to seamlessly traverse from one space to another. They are often interactive, facilitating that movement and encouraging users to express themselves and engage with content. They can also be coded to enable varying levels of supervision, regulation or control. The Internet can be manipulated in ways that physical spaces cannot.
[45] And its information comes in all types. Functionally, the Internet encompasses the most public and the most private human behaviour. It is the largest megaphone or billboard ever conceived, allowing publishers to connect with audiences far vaster than could ever physically congregate. Yet many millions also conduct private activities online, confident that their information — whether touching their work, social or personal lives — will remain as secure from general circulation as if they had transacted in person.
[46] With that range of behaviour comes a range of candour. Some online locations, like search engines, allow people to explore notions that they would be loath to air in public; others, like some forms of social media, allow users to dissimulate behind veneers of their choosing. Still others, like those dedicated to sexual activity, may encompass both poles. Online behaviour, in other words, may be radically transparent, radically disingenuous, or both. People do not always act online as they do in person.
[47] This, combined with its ubiquity, helps explain why the Internet raises “a host of new and challenging questions about privacy” (R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, at para. 1). Virtual police investigations may produce vast amounts of highly personal information, in contexts where people may be unusually uninhibited, engaged in forms of self-discovery, or seeking anonymity. The mere threat of state intrusion into those spaces may promote self-censorship, or the abstention from those spaces altogether, with costs to free expression and the exchange of ideas so essential in a vibrant democracy.
[48] Nor do privacy concerns end with online interactions. The Internet collects traces — information about a user’s physical location, online activity, and more — in ways that in-person interactions typically do not (Spencer, at para. 46). This data collection often occurs without a user’s awareness or consent, and those traces may persist indefinitely. They can spread with prodigious speed and reach, making it still more likely those traces will persist. And they can be compiled, dissected and analyzed to lend new insights into who we are as individuals or populations. As the rights and autonomy implications of those insights have become clearer, the divisions over how data is collected, protected and mobilized have in turn sharpened.
[49] Online spaces, in short, differ from physical spaces in at least three ways: the Internet, being informational rather than geographical, sheds many of the physical world’s limitations in terms of scale and functions; people behave differently when online; and virtual spaces raise unique rights concerns. As Ahmad stated, online spaces are qualitatively different.
[50] In my view, the greatest consequence of these differences for bona fide inquiries is that the boundaries of an online “space” only tell part of the story. While intuitive, geographical analogies are imperfect. There is no simple way to compare a six-block area of a city to its online equivalent, except perhaps via those spaces’ functions. And even then, similar functions may conceal deeper differences in experience. In an era when a single Tweet may attract more traffic than an entire mall, the parameters of a virtual space may be a poor proxy for the scope of a police investigation.
[51] To respect the entrapment doctrine’s underlying balance of first principles, then, courts assessing whether an online police investigation was bona fide must pay close attention to the space’s functions and interactivity — that is, to the permeability, interconnectedness, dynamism and other features that make the Internet a distinctive milieu for law enforcement. Even tailored online investigations may represent a broad and profound invasion into peoples’ lives. Given the potential of online investigations to impact many more individuals than an equivalent investigation in a physical space, the nature of those impacts deserve scrutiny. How the police act on the Internet may matter as much or more as where they act.
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