Entertainment & Media Law Signal : Canadian Entertainment Lawyers for Licensing, Intellectual Property & New Media Matters

Canadian entertainment lawyers are forced to look on in wonderment (and envy?) at the plethora of entertainment law-related legal disputes which arise in the United States.  Now (finally!) one with a Canadian angle - Gingrich ordered to stop using Heavy song

U.S. presidential hopeful Newt Gingrich's campaign is striking a sour note with a Montreal record label.

Third Side Music has sent Gingrich's team a cease and desist order demanding they stop using the song "How You Like Me Now" at campaign events.

The song is by the British band The Heavy, and the Third Side record label holds the rights to it.

In recent years, particularly in the 2008 US presidential campaign, assertions of copyright intended to stop politicians from making use of songs reached such a fever pitch that it was one of the primary topics of discussion on Ben Sheffner's late, lamented blog (from which this post swiped its name) Copyrights & Campaigns, and the US Center for Democracy and Technology published a 2010 report entitled Campaign Takedown Troubles: How Meritless Copyright Claims Threaten Online Political Speech.  There are also some great law journal articles on the topic: for example, Erik Gunderson's "Every Little Thing I Do (Incurs Legal Liability): Unauthorized use of Popular Music in Presidential Campaigns" (14 Loy. L.A. Ent. L.J. 137 (1993-1994)) and David Johnston's "The Singer Did Not Approve This Message: Analyzing the Unauthorized Use of Copyrighted Music in Political Advertisements in Jackson Browne v John McCain" (27 Cardozo Arts & Ent LJ 687 (2010)).

What is the position under US copyright law regarding the use of songs by political campaigns?  First, we need to draw a distinction between using a song at a public event, like a rally, and using a song in an advertisement - the legal restrictions are different in the different circumstances.  Tamera Bennett provides a handy summary of the relevant legal implications:

...so long as a campaign secures the necessary public performance license, a song can be played at campaign events without any permission from the artist, songwriter or music publisher.  If Mr. Gingrich would like to incorporate the song into a video or advertisement, then his team would need to secure a master use license from the record label and a synchronization license from the music publisher.

Fairly simple: in the US, using a song at a public event requires only the securing of a valid public performance license from a performing rights organization (such as ASCAP, BMI or SESAC) by either the campaign or the venue at which the event is being held.  Beyond requiring that a public performance license has been secured, it seems that an artist or record company has no other ability to restrict the use of a composition or recording at a political event.  If, however, a political campaign wants to make use of a song in an ad, then a synchronization license and a master use license would be required.

So, if that's the case, on what basis might The Heavy and Third Side Music be objecting to the Gingrinch campaign's use of "How You Like Me Now"?  After all, available news reports indicate that the song was only being played at public events and not being used in ads, and it would be a pretty basic error for either the venue to not have a license or the campaign to not have acquired what is referred to as a "travelling blanket license".  What gives?

Here's where the differences between Canadian and US copyright laws come into the picture (Canadian copyright law is relevant because the record label is in Canada and it was evidently a Canadian lawyer who sent the letter to the Gingrinch campaign).  In Canada, the Copyright Act (Canada) gives to authors rights referred to as "moral rights".  The relevant part of Section 14.1 of the Act reads as follows:

The author of a work has, subject to section 28.2, the right to the integrity of the work...

Section 28.2 of the Act elaborates on what "integrity of the work" means:

The author’s right to the integrity of a work is infringed only if the work is, to the prejudice of the honour or reputation of the author,

(a) distorted, mutilated or otherwise modified; or

 

(b) used in association with a product, service, cause or institution.

 

Thus, under Section 28.2, the use of a composition "in association with a ... cause" which "prejudice[s]" the "honour or reputation of the author" would constitute an infringement of the author's moral rights.

Regrettably, we don't have any Canadian caselaw on point which would help us analyze the circumstances in which a Canadian author might be able to successfully claim an infringement of his or her moral rights if the author's song has been used by a Canadian political campaign.  Presumably the use of a song by a politician who does not enjoy the support of the author could constitute the necessary prejudice, since Canadian courts have held that the question of whether prejudice has occurred is a subjective one - essentially meaning that so long as the author thinks their reputation has been prejudiced, and so long as the author's opinion is "reasonably arrived at", then prejudice will have been deemed to occur (see Snow v. The Eaton Centre Ltd. (1982) 70 C.P.R. (2d) 105).  It doesn't take a very limber imagination to envision an artist who does not want their work used by a politician.

So, does that answer the question? Do The Heavy have a right to stop the Gingrich campaign from using their song?  Well, we're not quite there yet.  A list of just some of the issues which remain outstanding:

• first, the Gingrich campaign is operating in the US - which does not recognize moral rights for authors (or, properly, only recognizes moral rights for authors of works of visual art, such as painting and sculpture) - so someone could not assert a moral rights claim in the US
• second, the UK (from where The Heavy hail) only recognizes a more limited form of moral rights as compared to Canada - and the UK version of moral rights does not include the "used in association with a cause" branch which is found in the Canadian Copyright Act - The Heavy wouldn't suddenly acquire expanded moral rights simply because their record company was located in Canada
• third, moral rights are held by authors, not by record companies or music publishers - if anyone wanted to complain here, it would have to be The Heavy themselves (assuming they are the authors of the song in question), not their surrogates
• fourth, it would be interesting to inquire whether The Heavy (again, assuming they are the authors of the song in question) had waived their moral rights in any kind of music publishing contract they had signed

In sum, then, can The Heavy prevent the Gingrich campaign from using their song at public events?  Not under US law.  Could they prevent a Canadian politician from using their song at a public event in Canada? Possibly - though if they wanted to take the dispute to court they would certainly be breaking new ground in Canadian copyright law.

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If you favorite website went black last week during the "Dark Wednesday" protests against the proposed SOPA and PIPA legislation and you don't know what the big deal was (much less what SOPA and PIPA stand for), below are a collection of articles that will catch you up.

• A very good nice overview of recent events and some history of the legislations by Larry Downes writing in Forbes.
• Steve Forbes writing in Forbes on why this legislation is, in his view, bad for business.
• Bill McGeveran writing in The Guardian on why the proposed legislation has only been temporarily delayed and suggestions to make it better.
• Michael Geist writing on the Huffington Post on the potential implications of SOPA and PIPA for Canadians.
• An interesting piece by Kim Masters in the Hollywood Reporter recounting some of the history of the legislation and the relationship between the MPAA, some of Hollywood's leaders and this legislation. 

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Amy Conroy, a Ph.D. student at the University of Ottawa's Faculty of Law, has written an excellent article summarizing the various legal regimes applicable to the protection of "personality rights" in Canada, from the common law tort of "appropriation of personality" to the statutory "privacy" regimes in various provinces to the civil code and Quebec Charter-based position found in Quebec.  The article, "Protecting Your Personality Rights in Canada: A Matter of Property or Privacy?", is available online, and has been published in the first issue of the University of Western Ontario Journal of Legal Studies.

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The question of whether Ontario law recognizes a tort cause of action for invasion/breach of privacy has long been a contentious one - but it has finally been definitively settled in the affirmative.  The Ontario Court of Appeal has confirmed in the case of Jones v Tsige, 2012 ONCA 32 that Ontario law admits a separate cause of action for what the court terms "intrusion upon seclusion".  (As discussed in this post, the trial decision in Jones v Tsige had flatly declared that "there is no tort of invasion of privacy in Ontario".)

A number of other commentators have already opined on the decision (see Ha-Redeye, Sookman, Hayes, Gannon), so I would like to just summarize the highlights and then comment on the importance of the decision for entertainment lawyers.  (I'd also like to give a shout-out to colleague John Craig, whose article "Invasion of Privacy and Charter Values: The Common Law Tort Awakens" 42 McGill Law Journal 355 was cited by the court in it reasons).

Elements of the Tort

The court is somewhat less clear than it could be on the precise elements of the new(-ish) tort.  From the decision:

[70]         I would essentially adopt as the elements of the action for intrusion upon seclusion the Restatement (Second) of Torts (2010) formulation which, for the sake of convenience, I repeat here:

One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person.

[71]         The key features of this cause of action are, first, that the defendant’s conduct must be intentional, within which I would include reckless; second that the defendant must have invaded, without lawful justification, the plaintiff’s private affairs or concerns; and third, that a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish. However, proof of harm to a recognized economic interest is not an element of the cause of action. I return below to the question of damages, but state here that I believe it important to emphasize that given the intangible nature of the interest protected, damages for intrusion upon seclusion will ordinarily be measured by a modest conventional sum.

I have italicized the language which gives rise to the confusion: it's somewhat fuzzy as to whether there are three elements to the tort (intentional/reckless conduct; intrusion on seclusion; highly offensive) or four elements (intentional/reckless conduct; intrusion on seclusion; highly offensive; causing distress/humiliation/anguish).  While nothing in this case turned on the point, it's not difficult to conceive of situations which are offensive but do not cause distress, humiliation or anguish.

The case is also worth keeping a copy of because it provides a rather succinct overview of various legislative and common law attempts to protect privacy interests, and contains an appendix listing damages awards in various "invasion of privacy" circumstances.

Limitations on Tort and Damages

The court identifies the following limitations on the availability of the tort (in paras. 72 and 73):

• limited to only "intrusions into matters such as one’s financial or health records, sexual practices and orientation, employment, diary or private correspondence that, viewed objectively on the reasonable person standard, can be described as highly offensive"
• subject to "competing claims" for things such as the protection of freedom of expression and freedom of the press

It appears that a plaintiff could recover any demonstrated pecuniary losses, along with "symbolic" or "moral" damages which are capped at $20,000.

Implications for Entertainment Lawyers

When advising clients in the entertainment industry, particularly those who produce investigative reporting, news reports, memoirs, documentaries, docu-dramas, even "reality" TV - really anything which involves the depiction of actual living persons - Ontario lawyers will need to be cognizant of the demonstrated availability of the "intrusion upon seclusion" tort - something which previously was largely a marginal concern in the province.

There is, as Mark Hayes notes, "great uncertainty" about how and the extent to which free expression interests will be taken into account in an "intrusion upon seclusion" court action.  How might a documentary or docu-drama make use of letters exchanged between two people, only one of whom is the primary subject to the movie?  Could the other person bring an intrusion upon seclusion claim for revealing "private" thoughts and experiences?  What kind of impact might revelations about an individual's sexual activities or orientation have (e.g., imagine a news report or book revealing that a politician privately practices activities that he or she emphatically denounces in public life)?  What about a book or TV movie about a public figure which reveals that the person once attempted suicide - something which they had worked to keep private?  Could showing that the finances of a public individual do not accord with their cultivated image (e.g., showing that a successful real estate mogul is in fact broke) be cause for a claim?  Is the interest recognized by the intrusion upon seclusion tort a personal one which expires upon death (similar to defamation), or can it be acted upon by heirs (as seems to be the case with the appropriation of personality tort)?

Of course, none of these questions are unique to this new tort - most legal developments are "fuzzy" around the edges and so engender similar considerations.  But because film and TV lawyers, in particular, need to consider not just potential liability for their clients, but also compliance with E&O insurance policy clearance requirements, a heightened sensitivity to the issue is called for.

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The Ethics Advisory Committee of The Canadian Association of Journalists has published their Best Practices in Digital Accuracy and Corrections, which seek to provide guidance for online implementation of the CAJ's ethical principle that "When we make a mistake, we correct it promptly and ungrudgingly, and in a manner that matches the seriousness of the error."  The guidelines include some thoughtful discussion regarding how the goal of "accuracy" should be achieved in a digital environment.

The guidelines identify three applicable principles:

1.Published digital content is part of the historical record and should not be unpublished.

2. Accuracy is the foundation of media credibility.

3. Transparency demands that we are clear with audiences about changes that have been made to correct/amend or update digital content.

Further, the guidelines identify three areas in which best practices can be implemented:

• helping readers report errors
• transparency in corrections
• placement of corrections

The guidelines also discuss the interaction between legal liability and corrections (such as with respect to defamation claims - in Ontario, Section 5 of the Libel and Slander Act effects a mitigation of damages for newspaper or broadcast libels where a retraction (meeting the prescribed requirements) has been published.

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Julie Hilden has written a very thoughtful piece (Should the Law Treat Defamatory Tweets the Same Way It Treats Printed Defamation?) (hat tip: Media Law Prof Blog) which explores whether a tweet (i.e., a post on the micro-blogging service Twitter, which limits individuals posts (or "tweets") to 140 characters) can ever be considered "defamatory". 

There is at least some indication that US courts are prepared to conclude that tweets can be defamatory: in the Simorangkir v. Love case (which was settled for a reported $430,000) a Los Angeles Superior Court judge refused a motion to strike the claim based on a series of defamatory tweet.  Canadian courts to date do not appear to have considered a defamation case based on Twitter postings (but see our recent discussion about defamation in the context of blogging: Baglow v Smith - The Increasing Importance of Context in Defamation Claims).

It strikes me that a tweet can certainly meet the threshold for "defamatory" (i.e., a statement of fact which would tend to lower the reputation of the plaintiff in the eyes of a reasonable person (Grant v Torstar Corp., 2099 SCC 61), but that, as seems to be the trend more generally in defamation cases, the context in which a tweet occurs is relevant to the analysis.  At a minimum, analysis of a purportedly defamatory tweet should take into account any preceding or following tweets from the same source - 140 characters isn't an awful lot of room in which to convey subtlety and context, so the meaning of a single tweet in a stream of them can have its meaning meaningfully altered by the content of "surrounding" tweets.  It will also, as was the case in the trial decision in Baglow v Smith, it may also be relevant to assess whether an impugned tweet was a unilateral communication or part of a "back and forth" discussion/debate/combat between two (or more) parties.  Finally, the nature of the platform itself may be a relevant consideration - as the Supreme Court of Canada indicated, in the context of the "fair/honest comment" defence, in WIC Radio v Simpson (2008 SCC 40 at para 48):

The key point is that the nature of the forum or the mode of expression is such that the audience can reasonably be expected to understand that, on the basis of the facts as stated or sufficiently indicated to them, or so generally notorious as to be understood by them, the comment is made tongue-in-cheek so as to lead them to discount its “sting” accordingly.

In other words, maybe people just don't take Twitter "seriously" enough - or they might not take particular expressions on Twitter, particularly from certain participants seriously enough - to warrant a finding that the statement was defamatory.

Irrespective of those analytical subtleties, though, Twitter is not and should not be viewed as a free-fire zone when it comes to defamation and it remains the case that publication on Twitter is still "publication" for purposes of a defamation claim, and so Twitter users should, to borrow from the boilerplate of lawyers' letters from time immemorial, conduct themselves accordingly.

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On August 31, 2011, the Canadian Broadcast Standards Council (CBSC), the private body which administers the codes of standards and conduct created by the Canadian Association of Broadcasters (CAB), announced its "revised" decision in respect of the Dire Straits song "Money for Nothing" (for previous Signal coverage of the CBSC's original decision and its aftermath, see here and here).  (One curiosity worth noting: according to the text of "revised" decision, it was apparently decided on May 17, 2011 - it is unclear why the decision was only announced and released three months later.) 

To recap: in January 2011 the CBSC released a decision of its Atlantic Regional Panel which, responding to a listener complaint, held that the radio broadcast of the Dire Straits song "Money for Nothing", which contained the word "f****t" (artfully called "the other f-word" in the revised decision), violated Clause 2 of the CAB Code of Ethics, and Clauses 2, 7 and 9 of the CAB Equitable Portrayal Code (all of which counsel against the use of language which is abusive, offensive, derogatory or results in negative portrayal on the basis of, among others, sexual orientation).  The Atlantic Regional Panel's decision ignited a negative public reaction, one which was so pronounced that the Canadian Radio-Television and Telecommunications Commission (CRTC) was prompted, after being buried by outraged public complaints, to send a public letter to the CBSC asking them to reconsider the decision - a rather remarkable turn of events, seeing as (a) there is normally no appeal mechanism for CBSC decisions, (b) the CRTC has no formal oversight powers over the CBSC, and (c) the people complaining to the CRTC were evidently confused about precisely to whom they should have been complaining, since the CRTC had nothing to do with the CBSC decision.  The CBSC convened what it called an "ad hoc national panel" to reconsider the decision, and that ad hoc panel has now released a "revised" decision, which, to mangle the terminology, "overturns" the earlier Atlantic Regional Panel decision.

Interested readers should peruse two items from the CBSC: both the lengthy National Panel decision and also the Press Release about the decision which was released by the CBSC.

To summarize the revised decision: using "the other f-word" in radio broadcasts is, in general, inappropriate and a violation of the Code of Ethics and the Equitable Portrayal Code, however, in the context of this song, the use of the word "f****t" was acceptable because it was in furtherance of the artistic device of portraying the intolerant, bigoted individual from whose perspective the lyrics of the song are being sung; all that being said, because there are numerous alternative versions of the song which have been released by the band and which do not make use of "the other f-word", those alternative versions are to be preferred, but broadcasting the original, unexpurgated version of the song will not, in itself, be a violation of the applicable Codes.

And so ends one of the more exciting episodes in the CBSC's history (assuming that another new, previously unknown appeal mechanism is not devised).  It strikes me that the revised decision is the preferable of the two, though the entire saga hopefully highlights the deficiencies of the existing process and demonstrates the need for an internal appeal/review device within the existing CBSC framework.

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Entering into contracts with minors in connection with entertainment-related project can be risky - many jurisdictions legislate particular rules which govern when a contract with a minor will be enforceable against that minor (for previous Signal coverage on the topic, see here), and failure to abide by those rules can imperil the contract.  One area, of particular interest to entertainment lawyers, which has historically been under-analyzed is how child authors are (or should be) treated by copyright law.  Where you're dealing with very young children (say, under the age of 8), the issues become even more acute: to what extent can a child that young meaningfully be said either to have engaged in an act of artistic creation or to have entered into a binding contract?

Julie Cromer Young has written "From the Mouths of Babes: Protecting Child Authors from Themselves" (112 West Virginia Law Review 431 (2010) (hat tip: Media Law Prof Blog), one of the first articles of which I'm aware that explores in detail the interface between copyright, contracts and child authors.  From the abstract:

This article begins by examining the practical ability or inability of the, "infant author," to achieve and exploit the full rights of copyright, given that the Copyright Office itself seems to recognize that any rights given to infant authors are tempered by contract laws. Section II reviews the contractual doctrine of infancy and its effect upon a child author's protection under copyright law. Section III examines the specific problem of minors contracting regarding their copyrights, especially online contracts. Section IV explores the issue as currently framed, reviewing potential solutions already suggested and noting their inherent problems. Section V examines the recent decision in A.V. v. iParadigms, noting potential flaws in the court's rationale. Section VI explores some of these problems, including constitutional rights that support the creative process but which may be limited in a child's setting, and suggests a measure that Congress could take to ensure that these rights are born with the child's work and mature as quickly as rights for a work authored by an adult.

While Young is writing primarily about US law, the issues and analysis should be of interest to entertainment lawyers in all jurisdictions.

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Konrad von Finckenstein, Chairman of the CRTC (Canadian Radio-television and Telecommunications Commission) delivered a speech on Monday at the Banff World Media Festival, the full text of which is available here.

The content of the speech is notable for a number of reasons, not least the broad-ranging assessment (prediction?) of how Canada's media regulatory regime should (will?) be modified:

We are in a new digital world now, a world in which consumers are in control. They have access to a wide range of digital platforms and applications. These new media bypass the traditional pathways of regulated broadcasting: over-the-air, cable and satellite. Therefore the Commission's ability to regulate through control of access is very much reduced.

I believe we need a conceptual rethink of the whole regulatory system. The results of that rethink should preferably be embodied in a single comprehensive Act to govern all communications.

The aim of the new legislation would be to create a structure for optimal regulation of the transportation of bits, whether by wireline or wireless technology, and whether they are carrying voice, video or data. This structure would support the development of a flexible, competitive and innovative system providing access for all Canadians to their choice of fast and efficient digital resources.

Here are some of the key points that might be included:

• A statement of objectives for the system—economic, social and cultural.

• A clear distinction between the broad policy choices to be made by the government and the powers to be assigned to an independent regulator in all areas of communication, including broadcasting, telecom and spectrum management.

• Specific provisions on timelines and on regulatory tools, such as AMPs (Administrative Monetary Penalties), mandatory adoption of codes, and the power to impose arbitration.

• A coherent scheme for the support of Canadian content. This could include subsidies, or incentives in the form of regulatory exemptions and exceptions, or a mix of all of these methods.

• The responsibilities and governance of the public broadcaster, defining its special role in reflecting Canada's unique culture and values.

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When a celebrity (or anyone else) walks down a red carpet, what are they consenting to in terms of the use of their image?  That issue was recently considered in the US district court decision Shirley Jones v Corbis Corporation (Case No 10-8668 SVW (CW)) (hat tip: THR, Esq.) - the decision is noteworthy because, while the layperson's response (or even a prima facie legal response) might be simple ("she's walking down a red carpet - of course she consented to the use of her photograph!") the District Court's reasons illustrate just how narrowly construed legal conclusions can be.

The facts of the case are relatively simple: Shirley Jones (perhaps best known for her role on the 1970s TV show The Partridge Family asserted that Corbis had violated her rights of publicity by displaying "sample" photographs of Jones on their website; Corbis, a stock photo company, maintains multiple websites via which potential customers can search Corbis' library for photographs.  If a user types a term into the search function, low-quality "sample" photographs matching the searched terms will appear.  Corbis often does not own copyright in the photographs, but instead has entered into license agreements with the copyright owners, and in turn offers licenses in the photographs to Corbis' customers. In the case of Jones, when someone typed in "Shirley Jones" a series of sample photos would appear, indicating the inventory of relevant photographs that Corbis had available; some of those photos were of Jones at various "red carpet" events.  Jones asserted that her right of publicity was being infringed by the act of showing those sample photographs.

The District Court rejected Jones' claim.  The court noted that "celebrities who walk down the red carpet generally pose for photographers and respond to their requests to smile, or to look in their direction"; at some red carpet events, notices are posted "stating that the celebrities entering the red carpet consent to being photographed and recorded, and also to having their name or likeness used in connection with the event".  It was undisputed that Jones had consented to the taking of the photographs.  Indeed, Jones even acknowledged that the photographers who took the photos would be selling those photos and would need to show those photos to prospective buyers in order to secure sales of them (in days of yore, photographers would carry around books with copies of the photographs).  The court further noted that "it is custom and practice in the entertainment industry that red carpet photographs are widely used and disseminated".  At this point, it is worth noting just how finely-crafted is the "implied consent" that Jones was deemed to have given: she did not sign any documents granting consent, nor did she even verbally agree to certain uses - instead, the parameters of her consent (taking the photograph, selling the photograph, offering samples of the photograph to prospective buyers) were all implied from her actions and the context in which those actions took place.

As the court described it, Jones' "only argument" could be that "she did not consent to [Corbis'] placement of sample images on its websites for the purpose of soliciting customers".  But such an argument had no cogency: she knew the photographers would be selling their photos, and that they would need to show the photos to others; the fact that the photographers had, in turn, authorized Corbis to show the photos in order to facilitate sales was entirely consistent with the scope of the consent Jones had given - she therefore had no claim against Corbis.  Her follow-up argument that her consent was limited to allow only the individuals photographers to show the photographs was completely unsupported by any evidence.

Again, though, what is remarkable about the decision is how narrow it is - in closing its reasoning, the court expressly states that its holding is "limited to the fact that Plaintiff consented to the display of her likeness for the purpose of distributing the images themselves ... [the] reasoning does not address whether Plaintiff's consent encompasses any other type of display" [emphasis added]; in particular, "the Court's holding leaves Plaintiff's rights of publicity undisturbed in cases where a defendant uses Plaintiff's image to advertise an unrelated product ... or if a defendant transforms Plaintiff's image into a separate product".

Because the court found for the defendant on the issue of consent, the court did not need to consider the defendant's other arguments (that there was First Amendment protection or that the claim was pre-empted by the Copyright Act).

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UPDATED BELOW

The Ontario Superior Court of Justice recently confirmed, in emphatic an unambiguous terms, that Ontario law does not recognize a common law tort of "invasion of privacy".  In Jones v. Tsige, 2011 ONSC 1475, Whitaker J. framed the question began his judgment as follows:

The central issue in this case is whether there is a tort for invasion of privacy.

He concluded as follows:

I conclude that there is no tort of invasion of privacy in Ontario.

That conclusion was made with reference to the Ontario Court of Appeal's decision in Euteneier v. Lee, 2005 CanLII 33024 (ON C.A.) wherein one of the justices noted that the appellant had "properly conceded in oral argument before this court that there is no “free standing” right to dignity or privacy under the Charter or at common law".

As Whitaker J. noted, there are four statutes which apply in Ontario which speak to the protection of an individual's privacy:  Personal Information Protection and Electronic Documents Act; Personal Health Information Protection Act, 2004;  Freedom of Information and Protection of Privacy Act; and Municipal Freedom of Information and Protection of Privacy Act.  Outside the ambit of those pieces of legislation, there is no protection of privacy in Ontario (or at least none which would be encompassed within a tort of "invasion of privacy".  As the judge also noted, other provinces already have in place various statutory regimes which provide more protection for privacy rights than is afforded by the four statutes mentioned above.

What is the relevance of the Jones v Tsige court's conclusion for entertainment and media lawyers?  The ambiguous concept of "privacy rights" is often engaged (or at least brought up) as a concern when dealing with documentaries, news reports, "reality" TV - really any sort of printed or audio-visual content which involves some kind of depiction of an actual person.  Further confirmation that there is no "invasion of privacy" tort in Ontario means that the universe of potential claims is that much narrower - when we advise our clients about "privacy" concerns raised by their activities we have a finite set of sources to assess from which such a claim could arise.  (I canvassed some of the issues could arise from the Personal Information Protection and Electronic Documents Act (more commonly referred to as PIPEDA) in this earlier post: PIPEDA and Filming/Photographing Individuals for Film and TV Projects.)

UPDATE (April 17, 2011): David Vaver has stridently argued that the decision of the court in Jones v Tsige is incorrect, and that other Ontario courts have seen fit to award remedies for invasion of privacy: Jones v. Tsige: Snooping and Privacy in Ontario.

UPDATE II (January 19, 2012): The Ontario Court of Appeal decision in the case has reversed and confirmed that an invasion of privacy tort (or "intrusion upon seclusion") does exist - see here for coverage.

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A recent Canadian Radio-Television Telecommunications Commission (CRTC) decision finding that MTV Canada's broadcast of the show Bully Beatdown did not violate the Canadian Association of Broadcasters’ Violence Code offers a good opportunity to review the relationship between the Canadian Broadcast Standards Council (CBSC) and the CRTC - a useful reminder as we await the outcome of the CBSC's review of its earlier decision on the radio airing of the Dire Straits' song Money for Nothing (see here and here for earlier Signal coverage of the matter; also worth reading is the CBSC release entitled Some Important Clarifications about the CBSC’s Dire Straits Decision, which is not just informative, but fascinating reading from a public relations standpoint).

 Some background on the Bully Beatdown decision.  In April 2009 the CBSC received a complaint about MTV's broadcast of the show - this file contains the original complaint, the response from MTV and some subsequent correspondence from both sides.  The complaint asserted that the broadcast of the show, in which a victim of bullying is afforded the opportunity to see his or her bully engage in mixed martial arts combat with a professional MMA fighter (there's a monetary component to the show which is, frankly, entirely besides the point), violated the Canadian Association of Broadcasters’ Violence Code.

In April 2010, the CBSC released its decision in the matter (CBSC Decision 08/09-1667), in which it concluded that the broadcast of the show did not violate the CAB Violence Code:

In the end, although sympathetic to the complainant’s concerns about the best societal solution to the bullying problem, the Panel finds no breach of any of the foregoing standards as a result of the type, timing, or advisory choices regarding the violent content of the challenged episode of Bully Beatdown.

The complainant requested that the CRTC review the CBSC's decision (an explanation of the relationship between the CBSC and the CRTC as it relates to CBSC decisions can be found here).  The complainant wanted the CRTC to review the decision particularly with respect to the fact that the CBSC did not find that there was a violation of Section 3.1.1 of the CAB Violence Code - the so-called "watershed" provision which requires that programming containing scenes of violence intended for adult audiences be aired only after 9pm.

In March 2011, the CRTC released its decision in the matter (

).  The CRTC confirmed the CBSC's decision that the broadcast of Bully Beatdown did not violate the CAB Violence Code, and in particular, that the scenes of violence contained in the program "were not of such an explicit or graphic nature as to necessitate relegation of the broadcast of the program to post-watershed hours".

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A slew of interesting materials have recently been posted relating to developments in the United States law relating to the "right of publicity" (for Canadians, the closest analogue would be the rights protected by the tort known as "appropriation of personality" - for some Canadian-specific academic treatment of the topic, see the resources listed in this earlier Signal post):

• Aaron Moss's When It Comes to the Right of Publicity, Yes Doubt, looks at some recent California cases revolving around the use of celebrity images, particularly in the context of videogames
• Mark Litwak provides a short but information-packed post discussing theJimi Hendrix Right of Publicity Suit - meaning the recent decision of the US District Court for the Western District of Washington in Experience Hendrix, LLC vs Hendrixlicensing.com, Ltd., a case which examined the post-mortem treatment of publicity rights, particularly where there are conflicting state laws which might be applied
• Mark A. Fischer and Franklin H. Levy have written a lengthy discussion on Privacy Rights and Celebrities: Truth, Fiction and Biopics, examining the right of publicity as modulated by free expression concerns in the context of "biopics" or "docudramas" - with a focus on the recent movie The Social Network

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In the inimitable Law Law Land style (no, seriously, not capable of being imitated... I've tried), Brian Berman explores, from the perspective of California law, various issues about engaging actors who are minors: Hailee Steinfeld Owns Hollywood…But Who Owns Hailee Steinfeld?

Contracting with minors often exposes one of the larger gaps between Canadian and US entertainment law practice: US producers and lawyers are sometimes startled to learn that, at least in the Province of Ontario, no statute exists which creates a pre-determined process to have a court affirm that a contract entered into with a minor is enforceable (British Columbia, by contrast, does have such a statutory procedure in place).  I canvassed the differences in the law and practice in California, New York, British Columbia and Ontario in my article "A Minor Conundrum: Contracting with Minors in Canada for Film and Television Producers", originally published in 29 Hastings Comm. & Ent. L.J. 45 (2006-2007), and a copy of which is available here.

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[The following originally appeared in the OBA's Entertainment, Media and Communications Law Section Newsletter, vol. 20, no. 2 January/Janvier 2011]

This article explores the interface between Canada’s primary federal privacy legislation, the Personal Information Protection and Electronic Documents Act (“PIPEDA”), and the activity of filming or photographing an individual where the resulting film or photograph is used in a motion picture or television project. The following analysis seeks to answer the question of how and to what extent PIPEDA impacts on the ability of motion picture and television producers to film and photograph individuals for inclusion in an audio-visual project. It should be noted that the provinces of British Columbia, Alberta and Quebec have enacted legislation recognized as “substantially similar” to PIPEDA – but there are some material differences between the provincial legislative regimes and its federal cousin. The analysis below does not canvass the provincial legislation, and so caution should be exercised in transposing conclusions reached about PIPEDA to the relevant provincial context.

It is generally accepted practice among entertainment lawyers that a signed release authorizing the reproduction of a person’s image is required for each individual who appears identifiably on-screen in an audio-visual project. There are some widely-recognized limited exceptions to that general rule, such as the placement of prominently-displayed notices in “public” or general access locations alerting pedestrians or attendees that filming is taking place and that entering into the area or venue will be deemed to be authorization for the filming and reproduction of their image. Such an approach ensures, for instance, that “lifestyle” shows which depict weddings do not feature simply a haze of blurred-out faces when showing the crowd at the reception.

This article is an effort to articulate one of the underlying rationales for the generally accepted practices described above – namely, that obtaining a release which evidences the consent of the individual is possibly required under PIPEDA. In doing so, the goal is to allow for systematic and comprehensive analysis of the issue, so that treatment of the matter can become standardized and predictable, which will be of benefit to both counsel and clients. In proceeding through this analysis, it may be useful to keep in mind examples of the situation in which questions of this sort may arise: in the course of filming a couple dining in a restaurant, numerous other diners seated at tables in the background are clearly visible; while filming an interview with the subject of a documentary outdoors in a public park, multiple clearly identifiable individuals walk by in the background; a producer finds a photograph of a smiling family which she thinks would be an excellent piece of set dressing as a memento on the desk of her main actor.

What Does PIPEDA Require?

In a letter written by the Privacy Commissioner of Canada (the “Commissioner”) to Immersive Media Corp. in connection with the Google “Street View” application,¹ the Commissioner provided a concise statement about PIPEDA and the obligations it imposes: “Pursuant to PIPEDA, businesses that wish to collect, use or disclose personal information about people generally require individuals’ consent, and they may only use or disclose that information for the purpose for which individuals gave consent.” Section 4(1)(a) of PIPEDA states that its personal information protection provisions apply “to every organization in respect of personal information that the organization collects, uses or discloses in the course of commercial activities”. The operative elements of the Commissioner’s statement, which reflect legal obligations imposed by Sections 4, 5 and Schedule I of PIPEDA,² are (i) the collection, use or disclosure of (ii) personal information, which requires (iii) consent, and which may only be used or disclosed (iv) for the purposes for which consent was given. One of the analytically challenging aspects of the privacy regime under PIPEDA is that it is principles-driven – Schedule I of PIPEDA sets out a series of principles which inform obligations with which those subject to PIPEDA are expected to comply. The principles include such notions as “accountability”, “consent” and “limiting collection”. Rather than close scrutiny of individual terms or setting out detailed prescriptions to guide future actions, formal PIPEDA analysis as undertaken by the Commissioner focuses on developing the content of the principles in a purposive manner and developing “recommendations” for consideration. The analysis below attempts to reconcile those approaches in order to determine the extent to which the four operative elements of PIPEDA’s obligations, noted above, are present when an individual is filmed/photographed for inclusion in an audio-visual project.

Does a Person’s Image Constitute “Personal Information” About That Person?

Does a photograph or film record of someone’s face (ie their “image”) constitute “personal information”? The answer appears to be “yes”, though that answer, somewhat surprisingly, does not appear to have been considered in detail by either the Commissioner or the courts. Section 2(1) of PIPEDA states that

““personal information” means information about an identifiable individual, but does not include the name, title or business address or telephone number of an employee of an organization”.

The threshold question is whether an individual’s image or appearance constitutes “information”. “Information” is not defined in PIPEDA, but the word appears to function as a synonym for “data”. The Commissioner has issued an “Interpretation”³ on the meaning of “personal information”, which, while not legally binding, is best viewed as an authoritative guide. According to the Interpretation, “video footage” of an employee constitutes “personal information”, and “[v]ideo surveillance that captures an individual’s physical image or movement may also constitute his or her personal information”.

In the Google Streetview Letter, the Commissioner unequivocally stated that “[o]ur Office considers images of individuals that are sufficiently clear to allow an individual to be identified to be personal information within the meaning of PIPEDA”. Despite the relative lack of scrutiny of the matter, the most cogent argument concluding that an image constitutes “personal information” is premised on the fact that recordation, whether by means of film or digital device, of an individual’s image creates “information” which itself can be used to identify an individual. 

Is Filming or Photographing Someone a “Collection” of Personal Information?

The Commissioner’s decisions⁴ and the single court ruling⁵ which are cited in the Interpretation in support of the conclusion that a person’s image constitutes “personal information” do not themselves ever expressly consider the question of whether filming or otherwise recording a person’s image constitutes a collection of personal information – they simply assume that it does. When the Federal Court considered the matter, in the context of an appeal from the Commissioner arising from a complaint about the installation of video surveillance cameras at a workplace, the court stated “[c]learly, the factual matrix behind the applicant’s complaint to the Commissioner is the collection of personal information”, without further enquiring into the matter.⁶

Implicit in the Google Streetview Letter, the Commissioner’s Findings cited in the Interpretation and subsequent Commissioner’s Findings involving the photographing or filming of individuals,⁷ is the conclusion that filming or photographing an individual constitutes a “collection” of personal information. The Commissioner has also held that simply filming an individual, even without an actual recording of the image being kept, constitutes a collection of personal information;⁸ a fortiori a recordation of an image is a collection.

Does Exploiting an Audio-visual Project Constitute “Use” or “Disclosure” of Personal Information?

“Use” is not defined in PIPEDA, though it is treated in the Commissioner’s various findings and court decisions as an expansive concept. Reproduction of an image for public viewing (such as in a movie theatre or television broadcast) or private viewing (such as an individual watching a DVD at home) almost certainly constitutes “use” or “disclosure” of that image.

What Constitutes “Consent” in the Context of Making Use of Footage Filmed for Audio-visual Project?

It is important to note that privacy decisions are profoundly informed by context. The reasonable expectation of privacy which an individual might have will likely be quite different in each of the examples which were described at the beginning of this article: what constitutes a reasonable expectation, and hence informs the form and substance of the required consent, is going to be different when dealing with a family photograph, as compared to dining in a restaurant, as compared to walking in a public park.

Principle 4.3 set out in Schedule I to PIPEDA states that the knowledge and consent of the individual are required for the collection, use, or disclosure of personal information, except where obtaining such consent would be inappropriate (as would be the case, for example, when collecting information for fraud detection or law enforcement purposes). The Commissioner has published Your Privacy Responsibilities – A Guide for Businesses and Organizations (the “Guide”),⁹ which attempts to clarify what constitutes valid consent. The Guide indicates that consent must be obtained before or at the time of collection (i.e., filming or photographing) and that obtaining consent requires informing “the individual in a meaningful way of the purposes for the collection, use or disclosure of personal data”. The Guide goes on to provide that requests for consent should be communicated in “a manner that is clear and can be reasonably understood”, and that consent should not be obtained “by deceptive means”. Principle 4.3.2. provides that, for consent to be meaningful, the purposes for which the information is being collected “must be stated in such a manner that the individual can reasonably understand how the information will be used or disclosed”.

A signed consent form in which the individual acknowledges that they have been or will be filmed and that the recordation is going to be included in an audio-visual project, and specifies the manner in which the project will be exploited, will almost certainly constitute sufficient consent. The Commissioner has issued guidelines applicable in the context of overt video surveillance which seem to indicate that the posting of signs on the perimeter of an area where filming is occurring, thereby giving individuals the ability to avoid entering the area, can constitute sufficient notice to give rise to a valid consent.¹⁰ The guidelines also state that signs “should include a contact in case individuals have questions or if they want access to images related to them”, and Section 4.9 of Schedule I to PIPEDA provides that individuals should be granted access upon request to their personal information which has been collected.

A number of points should be made about how the foregoing principles inform the obligations of producers of audio-visual projects. As an example, it is not likely to be feasible to require filmmakers to allow individuals to have access to the images taken of them in accordance with Section 4.9 of Schedule I – most filmmakers lack the administrative wherewithal to respond to such requests. Further, while much of the discussion around obtaining “consent” presumes that written disclosure of the collection, use and disclosure of information is required, one can query whether that would apply in the context of an audio-visual project: to what extent has consent been obtained if someone is interviewed on-camera, with full awareness that they are being filmed and that the footage will be used in some kind of audio-visual project? To what extent is disclosure required of the precise ways in which that footage or project will be exploited required (e.g., in theatres, on DVD, via online streaming)? 

Are There Any Relevant Exceptions to the Application of PIPEDA?

PIPEDA contains one exception to its application which is of potential relevance for film and television producers.¹¹ Section 4(2) of PIPEDA states that the relevant provisions of PIPEDA discussed in this paper do not apply to:

(c) any organization in respect of personal information that the organization collects, uses or discloses for journalistic, artistic or literary purposes and does not collect, use or disclose for any other purpose [emphasis added]

Unfortunately for our purposes, only the term “journalistic” has been considered by the Commissioner or the courts.¹²

Qualifying for the exception under Section 4(2) would be a boon for producers of audio-visual projects, as it would liberate them entirely from the constraints of PIPEDA obligations, at least as they pertain to the collection and inclusion of images in audio-visual projects. A tension arises from the wording of the exception. Section 4(1)(a) of PIPEDA states that its personal information protection provisions apply “to every organization in respect of personal information that the organization collects, uses or discloses in the course of commercial activities” [emphasis added]. Section 4(2) operates to limit the extent of that application – and raises the question of whether the presence of “commercial” elements in an activity will “taint” that activity such that it does not qualify as “artistic”. In the sole decision by the Commissioner which considered the nature of the “journalistic” exception, a for-profit radio station was held to fall under the ambit of Section 4(2) when it disclosed the name and recordation of the voice of a caller to its crime tip-line.¹³ In that case, then, the presence of “commercial” elements did not “taint” the ability to qualify for the exception. Since many artistic or literary efforts are going to be undertaken in the presence of at least some commercial element or incentive, for the exception to be meaningful it would have to accommodate artistic endeavours rendered in the guise of commercial undertakings.

There are at least three areas for further inquiry under Section 4(2) for producers of audio-visual projects. First, can exploitation of any audio-visual project qualify as use for an “artistic” purpose, regardless of the nature of the project, or are different projects treated in different ways (eg is an over-the-top special effects-heavy action-adventure movie to be treated in the same fashion as a sombre avant-garde short film)? Second, are there some audio-visual projects which could qualify as “journalistic” endeavours in addition to or regardless of their qualification as “artistic” – such as documentaries? Is there a “timeliness” element to the latter analysis (eg does a subject need to be timely or of current concern in order to be “journalistic” or can “journalistic” cover a documentary about some historical event)? Finally, attention would need to be paid to the limitation imposed by Section 4(2): an image can be used or disclosed only for the artistic purpose. The scope of what constitutes an “artistic purpose” would require further development. For example, in light of that limitation, it is unclear whether images could also be used for promotional purposes – in other words, could the images be used in a “trailer” or advertisement for the project?

We can tentatively conclude that there is a strong possibility that the inclusion of an image in many audio-visual projects would qualify as a use for an “artistic” purpose, and thus outside of the scope of PIPEDA. Such a conclusion would mean that producers are free to collect, use and disclose (ie film or photograph an individual, and include that film or photograph in an audio-visual project) without the need to obtain consent from that individual in order to comply with the producer’s obligations under PIPEDA. That conclusion is, however, only tentative. It remains to be seen how the federal or provincial privacy commissioners will resolve the tension between the conflicting commercial and artistic imperatives present in the scope of PIPEDA and its exceptions. Until there is a definitive pronouncement from the Commissioner or the courts regarding the scope of the “artistic purpose” exception, prudent lawyers will continue to counsel their clients to obtain written confirmation of authorization from individuals who appear recognizably on-screen in an audio-visual production.

Conclusion

Although a definitive conclusion is difficult to arrive at, current industry practice seems to accord with PIPEDA’s requirements: producers generally obtain written authorization when recording the image of an individual and including it in an audio-visual project. In certain circumstances, primarily involving non-controlled environments such as public spaces or large private gatherings, prominently-displayed notices which permit individuals to decide whether to continue into the area where filming is taking place likely also comply with PIPEDA. The privacy regime set out in PIPEDA also offers an untested exception for “journalistic” and “artistic” projects, which may shelter audio-visual projects. The scope of the exception remains unclear, but in a worst-case scenario, where no written consent has been obtained and no written notice was provided, the exception may yet prove to be of significant value.

________________

¹ Letter from Jennifer Stoddart dated August 9, 2007, to Letter to Mr. Myles M. McGovern, President, CEO and Director, Immersive Media Corp., available at http://www.priv.gc.ca/media/let/let_070911_02_e.cfm [the “Google Streetview Letter”].
² http://laws.justice.gc.ca/eng/P-8.6/20090818/page-4.html.
³ Available at http://www.priv.gc.ca/leg_c/interpretations_02_e.cfm.
⁴ PIPEDA Case Summary #264 - Video cameras and swipe cards in the workplace - http://www.priv.gc.ca/cf-dc/2004/cf-dc_040219_01_e.cfm; PIPEDA Case Summary #290 -Video surveillance cameras at food processing plant questioned - http://www.priv.gc.ca/cf-dc/2005/290_050127_e.cfm; PIPEDA Case Summary #279 - Surveillance of employees at work - http://www.priv.gc.ca/cf-dc/2004/cf-dc_040726_e.cfm; PIPEDA Case Summary #114 - Employee objects to company’s use of digital video surveillance cameras - http://www.priv.gc.ca/cf-dc/2003/cf-dc_030123_e.cfm; see also Case Summary # 2002-89 – pilot taking photograph of airplane passengers - http://www.priv.gc.ca/cf-dc/2002/cf-dc_021112_1_e.cfm.
⁵ Eastmond v. Canadian Pacific Railway, 2004 FC 852 (CanLII), 33 C.P.R. (4th) 1 [Eastmond].
⁶ Eastmond at para. 111.
⁷ See, e.g., PIPEDA Case Summary #2009-007, available at http://www.priv.gc.ca/cf-dc/2009/2009_007_0504_e.cfm
⁸ PIPEDA Case Summary #2001-1, available at http://www.priv.gc.ca/cf-dc/2001/cf-dc_010615_e.cfm
⁹ Available at http://www.priv.gc.ca/information/guide_e.cfm#016
¹⁰ See Guidelines for Overt Video Surveillance in the Private Sector - http://www.priv.gc.ca/information/guide/2008/gl_vs_080306_e.cfm
¹¹ Section 7(1)(c) of PIPEDA states that an organization may collect personal information without the knowledge or consent of the individual if the collection is solely for journalistic, artistic or literary purposes. That exception, however, is of very limited utility for producers, as it only allows for the collection of personal information without knowledge or consent, and does not permit the use or disclosure of that information.
¹² PIPEDA Case Summary 2003-123 [http://www.priv.gc.ca/cf-dc/2003/cf-dc_030228_e.cfm] – “journalistic” purposes test was satisfied where local radio station recorded a phone call and used the name of an individual who called a “tip line” to report a crime he had witnessed.
¹³ PIPEDA Case Summary 2003-123 [http://www.priv.gc.ca/cf-dc/2003/cf-dc_030228_e.cfm].

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Who owns the copyright in an interview?  While this may seem to be an obscure (or least inconsequential) question, it has relevance not just for journalists, but for freelance writers, documentarians, creators of non-fiction works and novelists.

We should distinguish between different types of interviews: (1) verbal interviews which are either transcribed (using short-hand, for example) or recorded (using, say, a digital voice recorder) by an interviewee; (2) filmed interviews; and (3) written interviews in which the interviewer and interviewee exchange written questions and responses (via email, for instance).  Each of these interviews can be protected by copyright in a variety of ways: (a) an interview which is reduced to writing would be protected as a "literary work"; (b) an interview whose audio portion is recorded would be protected as a "sound recording"; and (c) an interview which is filmed would be protected as a "cinematographic work".

Who then "owns" the copyright in each of those three different situations?  For verbal interviews which are recorded or transcribed, Canadian courts have concluded that the person responsible for turning the interview into written words is the presumptive author and owner of the work (we'll set aside for the moment the question of whether and when an interview might be a "work made in the course of employment" - such as where a journalist is a staff employee of a broadcaster or newspaper).  The Federal Court of Canada, in Neugebauer v Labieniec, 2009 FC 666 (CanLII), noted the following:

[39] In Gould Estate v. Stoddart Publishing Co. 1996 CanLII 8209 (ON S.C.), (1996), 30 O.R. (3d) 520 (Gen. Div.), aff’d 1998 CanLII 5513 (ON C.A.), (1998), 80 C.P.R. (3d) 161 (Ont. C.A.). Glenn Gould, who was the subject of the literary work, contributed substantially to the content of the work in the form of statements given in interviews. However, the author was held to be the person who conducted interviews and performed the creative task of assembling his statements into a literary work. Accordingly, Gould states that people do not have copyright in a work simply because they are its subjects or respond to questions in interviews. Following Gould, Hager v. ECW Press Ltd., 1998 CanLII 9115 (F.C.), [1999] 2 F.C. 287, 85 C.P.R. (3d) 289, at para. 24, noted that:

Under Anglo-Canadian law, insofar as private interviews are concerned, it is the person who reduces the oral statements to a fixed form that acquires copyright therein. That individual is considered to be the originator of the work.

That reasoning would seem to apply with equal force to situations involving a sound recording of an interview or a filmed recordation of the interview: whoever was responsible for "fixing" the interview (ie responsible for the recording or the filming) would be the presumptive author and owner of the resulting sound recording or cinematographic work.

This seemingly straight-forward rule, however, still leaves some areas unclear: who owns copyright in an interview conducted via email? There, the person answering the questions will be the one responsible for "fixing" their responses, and so would appear to have copyright in those answers (the person conducting the interview via email would presumably have copyright in the questions which are posed, and in the arrangement of the questions and answers).  

Questions of ownership can become important if an interview is used by a third party in some unauthorized fashion - for instance, if a blog, magazine or book reproduces some or all of a written interview previously published elsewhere, or if a blog or television show reproduces some or all of a filmed interview first broadcast elsewhere,  the identity of the proper plaintiff to claim infringement would need to be considered.

Tangential to the question of "ownership", but often no less important, is the question of whether the use made by the interview of the interview constitutes a breach of a condition or limitation placed on the use of the interview by the interviewee.  For example, an interviewee might say that the interview is conducted solely on a "no attribution" basis, or that the interview can only be used in connection with publication in a particular venue (such as a particular magazine or particular television show).  In such a situation, the aggrieved interviewee may try to bring an action for breach of contract - and then the question will devolve into a consideration of what terms, if any, were agreed to by the parties. 

[Inspiration for this post was provided by Mark Fowler at Rights of Writers - and that post is highly recommended for anyone interested in how the question this posts poses might be answered in the United States.]

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Further to our earlier post on the matter (CBSC Decision on Derogatory Terminology), in what appears to be an unprecedented step, the CRTC (Canadian Radio-Television and Telecommunications Commission) has sent a letter to the CBSC (Canadian Broadcast Standards Council), asking the CBSC to reconsider its decision that the use of the word "f****t" in the Dire Straits' song "Money for Nothing" contravenes the CAB's (Canadian Association of Broadcasters) Code of Ethics and Equitable Portrayal Code.

The text of the CRTC's January 21, 2011 letter to the CBSC can be found here.  It states, in part:

In light of the national scope of this matter, the strong public reaction to the Atlantic Panel’s decision, and the considerable experience of the CBSC in reviewing such matters, the Commission hereby is taking the following two steps:

1. We are sending you all the correspondence we have received in respect of this matter since your decision was published.

2. The Commission is of the view that the CBSC should appoint a panel with a national composition to reconsider the matter and review the new correspondence regarding this song.

Such reconsideration should, after seeking submissions from the public by means of a public request for comments via your website, take into consideration all relevant factors, including:

• the context of the particular wording in the song’s theme and intended message,

• the age and origin of the song and the date of its performance,

• the prominence of the contested word in the song and the use of that word over time, and

• the length of time and frequency that it has been playing on the airwaves.

The letter is particularly notable because the CRTC has no actual authority over the CBSC - the CBSC is a private independent body which does not report to the CRTC.

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The CBC is reporting about another copyright flare-up involving Canadian political parties:

The federal Conservatives are rejecting a demand by the CBC to withdraw file footage from the national broadcaster that appears in new Tory ads targeting their political opponents.

The Conservatives did not seek permission to use CBC content in three ads that were posted online and broadcast on TV on Monday, says CBC spokesman Marco Dube says.

This seems to be a bit of a recurring theme with the Conservatives: I had written earlier about the 2007 spat which arose because the Conservatives used footage from the 2006 Liberal leadership debates.  As I noted then:

The incident afforded an opportunity to reflect on a larger issue: should there even be a possibility of infringement in situations like this?  In Canada, this appeared to be a case of prima facie infringement - while American readers might have been thinking that there was at least a plausible argument that the use qualified as "fair use".  But Canada lacks a "fair use" concept, instead having a more limited "fair dealing" concept.  The Copyright Act enumerates certain exceptions to infringement - and if you can't fit yourself into one of them, you've infringed copyright.

I concluded then that the chances that the unauthorized use of footage in a political ad would constitute "fair dealing" under Canadian copyright law would be slim - but that such a conclusion was regrettable, since on freedom of expression grounds it almost certainly should be permissible to use short clips or stills, particularly from political debates and particularly from pool or public broadcaster footage, in the context of a political ad.  The 2007 copyright dispute does not appear to have ever had a publicly disclosed resolution - and I suspect the 2011 dispute will end in much the same way.

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It reads like a bit of a stretch to find some "Canadian content", but when CBC News reported late last week that a company had purchased the "image rights" to Marilyn Monroe (the CEO of the company is evidently based in Toronto, and the company appears to have an office in Canada but otherwise appears, from the info on their website, to be primarily a US company) it actually raised some interesting issues about post-mortem publicity rights held by the estates of deceased celebrities.

As has been previously discussed on the Signal, rights in a celebrity's image, particularly for purposes of endorsements and use of the image in connection with merchandise or services, are an element of what in the United States are called "publicity rights" and which in Canada would be covered by the tort of "appropriation of personality" or, in certain provinces, accorded protection by a provincial Privacy Act (British Columbia, Manitoba, Saskatchewan and Newfoundland and Labrador).  Protection for publicity rights in the United States is similarly jurisdiction-dependent: different states offer protection of different forms and duration.  The critical question for purposes of considering rights in Marilyn Monroe's image is the extent to which publicity rights extend to deceased celebrities. 

In the United States, different states offer differing degrees of protection: for example, California protects the publicity rights of deceased celebrities (for a period of 70 years following death), whereas New York does not recognize such rights.  In Canada, a similar jurisdiction-specific analysis must be undertaken: the Privacy Acts in BC, Saskatchewan and Newfoundland expressly exclude deceased individuals from the protection offered by the Act.  Manitoba's legislation is silent on the matter.  There is common law protection for what we can loosely call "publicity rights" (under the guise of the tort of appropriation of personality), but we don't know for how long such a right persists after a celebrity passes away.  The Ontario Supreme Court in Gould Estate v. Stoddart Publishing Co., 1996 CanLII 8209 (ON S.C.) stated that

The right of publicity, being a form of intangible property under Ontario law akin to copyright, should descend to the celebrity’s heirs. Reputation and fame can be a capital asset that one nurtures and may choose to exploit and it may have a value much greater than any tangible property There is no reason why such an asset should not be devisable to heirs ... and it seems reasonable to conclude that whatever the durational limit, if any, it is unlikely to be less than 14 years.

So, with respect to deceased celebrities in Canada, the most we can conclude is that their heirs do have a protectible interest at common law, and that such right likely lasts for at least 14 years.  Beyond that, we're into the realm of speculation.  Absent a trade-mark registration, the rights which have been purchased in the image of Marilyn Monroe (who died in 1962, almost 50 years ago) may not be enforceable in Canada (at least by means of the common law tort - and certainly are not enforceable in BC, Saskatchewan and Newfoundland and Labrador under their respective Privacy Acts).  For a detailed analysis of these issues, see David Collins' "Age of the Living Dead: Personality Rights of Deceased Celebrities" (39 Alta Law Rev 914 (2001-02)).

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California recently added a new section (Section 528.5) to their Penal Code which makes it a criminal offence to

knowingly and without consent credibly impersonate[] another person through or on an Internet Web site or by other electronic means for purposes of harming, intimidating, threatening, or defrauding another person

California being California, questions were immediately raised: Is It Now Illegal To Pretend You're A Celebrity Online?  Christina Santana at the JETLaw Blog provides some background details on the impetus for the law, which apparently is intended to address a rather large lacuna in California's legal code: when the leader of a Silicon Valley industry association had his email accounts hacked and illicit emails sent in his name, he was angered by the fact that California law provided no apparent recourse.  The bill, intended to address cyber-bullying and cyber-harassment as well as electronic impersonation, has raised some concerns from civil liberties groups who worry that the law does not adequately allow for parody and political activism (see this BBC News story).  The new Penal Code provision makes explicit reference to "opening an e-mail account or an account or profile on a social networking Internet Web site in another person's name".

As this Vancouver Sun story notes, Canadians (whether celebrities or otherwise) already can rely on the Criminal Code to protect against online impersonations (or, in the deathless prose of the Code, "personations"): Section 403 of the Canadian Criminal Code prohibits:

personat[ing] another person, living or dead,

(a) with intent to gain advantage for themselves or another person;

(b) with intent to obtain any property or an interest in any property;

(c) with intent to cause disadvantage to the person being personated or another person; or

(d) with intent to avoid arrest or prosecution or to obstruct, pervert or defeat the course of justice.

Because the language of Section 403 is agnostic (indeed, silent) with regards to technology, the section can presumably be used to prosecute online (im)personation just as readily as physical (im)personations (to date, most prosecutions under Section 403 appear to be for matters such as forged passports and driver's licenses or fraudulently using someone else's credit cards).

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In the UK, the Daily Mail is reporting that the Office of Fair Trading (OFT) will be monitoring celebrity tweets for undisclosed paid endorsements (hat tip: THR, Esq.):

Dozens of celebrities, including actress Liz Hurley and singer Lily Allen, face possible court action over claims that they are endorsing luxury items on their internet blogs and Tweets without declaring that they have been paid by the companies concerned.

Actors, pop stars and TV presenters who fail to mention that they have a financial interest in ‘plugging’ goods such as cars or perfumes online could be contacted by the Government’s consumer watchdog in the coming weeks. ... [OFT] enforcement officers are examining possible breaches of the law by celebrities involved in secret deals with manufacturers of luxury goods.

The story appears to be referring to the UK's Consumer Protection from Unfair Trading Regulations 2008 (see also this Guidance published by the OFT), which make it an unfair trading practice for a celebrity to promote a product without disclosing that the promotion has been in some fashion compensated (which appears to include the provision of free goods).

The United States appears to be, by far, the market leader (so to speak) in regulating online celebrity endorsements, particularly with reference to social media.  In 2009 the US Federal Trade Commission published its guidelines concerning celebrity endorsements and testimonials:

• FTC Publishes Final Guides Governing Endorsements, Testimonials
• detailed FAQs about the Endorsement Guides
• text of the Endorsement Guides

Suffice it to say that paid endorsements in the United States communicated via social media (such as Twitter or Facebook) are required by the FTC Endorsement Guides to make mention of the fact that the endorser is being compensated for their statement (no form of disclosure is mandated, but the FAQ suggests using the hash tag “#paid ad” for tweets).

Suffice it also to say that Canada's legislative and regulatory regimes do not address these matters in anywhere near the detail found in the FTC Guides.  While the Competition Act (Canada) prohibits making of a false or misleading representation in connection with the sale of a product, we're left to query whether not disclosing that you've been paid to endorse a product (or given free samples of a product in the expectation that you will promote its use) constitutes a "misrepresentation" (and a "material" one at that).

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The Canadian Broadcast Standards Council (CBSC), the private body which administers the codes of standards and conduct created by the Canadian Association of Broadcasters (CAB), has rendered a decision (via its Atlantic Regional Panel) concerning the broadcast of the unedited version of the song “Money for Nothing” by Dire Straits by a radio station in St. John's, Newfoundland and Labrador.  The CBSC has made the full text of the decision available, as well as having issued a media release about the decision.  (The decision was made in October 2010, but not publicly released until January 2011.)

The decision is notable for a couple of reasons.  First, it represents confirmation from the CBSC that use of the word "f****t" (I confess I'm not sure what the exact etiquette of using derogatory words in an explanatory context on a law firm website is, so I'll leave it to readers to click through to the decision if they feel the need to read an unexpurgated usage of the term) contravenes Clause 2 of the CAB Code of Ethics, and Clauses 2, 7 and 9 of the CAB Equitable Portrayal Code (all of which counsel against the use of language which is abusive, offensive, derogatory or results in negative portrayal on the basis of, among others, sexual orientation).

Additionally, the decision makes reference to Clause 9b of the CAB Equitable Portrayal Code, what I'll call the "evolution of language" clause, which reads as follows:

It is understood that language and terminology evolve over time. Some language and terminology may be inappropriate when used with respect to identifiable groups on the basis of their race, national or ethnic origin, colour, religion, age, gender, sexual orientation, marital status or physical or mental disability. Broadcasters shall remain vigilant with respect to the evolving appropriateness or inappropriateness of particular words and phrases, keeping in mind prevailing community standards.

As the decision notes, the wording of that clause of the Code "does not restrict the direction of the evolution, which may, in some cases, head toward greater permissiveness, and in others greater restrictiveness".  In the case of "Money for Nothing", released in 1985, the impugned word "even if entirely or marginally acceptable in earlier days, is no longer so ... it has fallen into the category of unacceptable designations".  In other words, the fact that the song had been broadcast for nearly twenty-five years without formal objection could not be relied upon to justify contemporary broadcast.  (The decision makes reference to previous decisions by other CBSC panels which concluded that the word "f**" could be acceptable in certain broadcast contexts, though the Atlantic Panel seemed to be less than thrilled with those decisions.)  The lyrics in the song were controversial even when it was first released - and alternative edits, with the offending word either garbled or entirely removed, are available, and the Panel noted that broadcast of such an altered version of the song would not contravene either Code.

UPDATE: Graham Purse, at the University of Alberta Faculty of Law blog, provides a run-down of other CBSC decisions which examined song lyrics.  Radio guy Alan Cross has written a lengthy post which explores the workings of the CBSC from a broadcaster's perspective (hat tip: Andrew Potter).

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The Supreme Court of Canada's October 22, 2010 decision in Globe and Mail v. Canada (Attorney General) (2010 SCC 4) prompted a flurry of responses (Omar Ha-Redeye's post at slaw (Wigmore Criteria Upheld for Journalistic Sources) is one of the best sources for a concise summation of the decision).  Available online are the factums of both the Globe and the Attorney-General of Canada.  

The decision is perhaps best seen as a companion decision to the R. v. National Post (2010 SCC 16) decision released earlier this year (earlier Signal coverage of the R v National Post decision can be found here).  The Court described the relationship between the two cases in the Globe and Mail decision:

[25] While this appeal raises issues similar to those addressed in National Post, the context is nevertheless different. This case involves civil litigation, not the criminal investigative process. It involves testimonial compulsion, and not the production of documents or other physical evidence. The parties’ dispute is subject to the laws of Quebec and the Quebec Charter. These factors must be considered in determining how, and to what extent, the majority reasons in National Post are equally applicable to the issues raised by this appeal.

The Court concluded that, while the contexts might be different, the applicable law was nevertheless the same: Canadian law does not recognize a class-based journalist-source privilege, nor does the Charter guarantee of press freedom entail such a privilege; that being said, there is a common law (and, in Quebec, civil law) basis for recognizing a case-by-case privilege - a privilege which is available in both civil litigation matters and criminal prosecutions, in both Canadian common law and civil law jurisdictions.  

The criteria to be met in order to shelter under the protection of the privilege are the following, derived from the academic writings of John Henry Wigmore (see paras. 22 and 53 of the Globe and Mail decision):

1. the relationship must originate in a confidence that the source’s identity will not be disclosed
2. anonymity must be essential to the relationship in which the communication arises
3. the relationship must be one that should be sedulously fostered in the public interest
4. the public interest served by protecting the identity of the informant must outweigh the public interest in getting at the truth

In effect, then, Globe and Mail confirms and extends R v National Post - and,

as I noted about the earlier decision

, perhaps the most significant element of the two decisions is that they confirm that the concept of "journalist" is now so amorphous and so incapable of being restrictively defined that the courts are adopting a case-by-case approach to assessing whether privilege will be accorded in a particular instance.

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Shaw Communications Inc.’s purchase of the Canwest Global Communications Corp. television properties was approved by the CRTC on October 22, 2010. On the same day, the CRTC announced that it will hold a public process in 2011 to review its regulatory framework relating to “vertical integration”. The CRTC’s rationale for the policy review is what it refers to as “growing trend of industry consolidation and vertical integration taking place in the Canadian broadcasting industry”. The CRTC cited acquisitions that have taken place over the last decade, including the transfer of control of TVA to Quebecor Media Inc. in 2001, the transfer of the Citytv stations to Rogers Media Inc. in 2007 and the 2010 Shaw-Canwest acquisition. The CRTC also pointed to the announcement by BCE on September 10, 2010 that it would acquire sole control of CTVglobemedia Inc.

What’s interesting is that the transactions cited by the CRTC represent consolidation of programming and distribution undertakings (with the exception perhaps of Quebecor which also has a significant production arm). However for the purposes of its policy review, the CRTC has defined “vertical integration” to include the combination of programming undertakings and production companies. This is somewhat puzzling given that the broadcaster-producer integration is no longer as prevalent as it was in the last decade when entities such as Canwest-Fireworks and Alliance Atlantis were vertically integrated into production.  Both of these companies ultimately ceased their production activities to become pure play broadcasters.  

Is the Commission just being thorough here or are there winds of change blowing in the ownership structure of the independent production sector?  

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According to this story in the Toronto Star:

Toronto radio station CFNY has been reprimanded by the Canadian Broadcast Standards Council after a host made comments about Justin Bieber fans that the council concluded “inappropriately sexualized children.”

The full text of the CBSC decision (captioned as "CFNY-FM re comments made on the Dean Blundell Show (Justin Bieber fans)") is available here.  The Canadian Association of Broadcasters' Equitable Portrayal Code is available here.

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Recent news that the voice actor behind "Dora the Explorer" has filed suit against the producers of the show on the basis that the contract signed by the actor (who is a minor) is "unconscionable" offers a chance to review an area of entertainment law which is drastically different on either side of the Canada/US border.  Diane Krausz and Jennifer Bellusci offer some thoughts on how the lawsuit has been framed in legal terms and a brief overview of New York State law on contracting with minors in "Dora Explores a Minor Platform", while Rachel Valadez explores some of the non-legal (but still important for lawyers) strategic considerations behind the handling of the lawsuit in "Lessons From the Legal Saga of Dora the Explo(rer/iter/ited".  A comprehensive review of the law of contracting with minors for film and TV productions in New York, California, Ontario and British Columbia can be found in my article "A Minor Conundrum: Contracting with Minors in Canada for Film and Television Producers", originally published in 29 Hastings Comm. & Ent. L.J. 45 (2006-2007), and a copy of which is available here.

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Eriq Gardner has published a simply excellent article in the ABA Journal: "What's In a Name?" explores the history, caselaw and controversies surrounding US "right of publicity" law.

Publicity rights battles are growing exponentially, according to legal practitioners, who point to a host of reasons for the increase. For one, about 18 states have adopted laws giving individuals the right to sue over commercial exploitation of their persona. In addition, changes in technological culture make it both more tempting to use—and easier than ever to spot—an unauthorized use of a celebrity’s image.

Most especially, practitioners believe this area has grown hot because of a lack of acknowledged boundaries. A combination of generous laws, ambitious plaintiffs and no consistent bright-line defenses against claims means that attorneys are free to take rights conferred, find jurisdictions where the protections are most generous, and make a claim.

Some critics worry about how expanding publicity rights may chill free speech, but in the meantime, the issue of celebrity publicity rights is giving a lot of work to a new generation of IP lawyers like Faber.

“The sky’s the limit,” says Indiana University law professor Marshall Leaffer. “Over the years, we’ve seen publicity rights claims being made on someone’s voice, on a golfer’s swing, even on a sports car identified with a particular racer. A person’s likeness covers a lot. Rights of publicity claims are seemingly impeded only by a lawyer’s imagination.”

While the article is, as noted, concerned with US law, it offers Canadian lawyers a handy round-up of information for comparative purposes.

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UPDATED BELOW

In a Decision released on August 30^th, the CRTC has confirmed that Canada's major telephone companies must make their existing wholesale high-speed internet access services available to competitors under a "speed-matching" requirement. "Speed Matching" is a regulatory requirement that applies to phone companies (referred to by the CRTC as “incumbent local exchange carriers”, or “ILECs”) who offer broadband internet access to residential customers. The CRTC applies similar rules to cable companies when they act as “cable carriers” in offering high speed internet access via their cable facilities. Under the speed matching rules, the ILECs and cable carriers must ensure that internet speeds provided to smaller companies that rent portions of the ILEC and cable carrier networks (known as “wholesale” services) match the speed that the ILECs and cable carriers offer to their own retail customers.

The ILECs (the major ILECs are Bell Canada, Telus and MTS/Allstream) provide retail high speed internet service using aggregated asymmetric digital subscriber (ADSL) technology for use with their copper or hybrid copper-fibre facilities. On the cable side, cable carriers including Rogers, Shaw and Videotron provide high speed third-party Internet access (TPIA) service using its DOCSIS technology alongside hybrid fibre-coaxial facilities.

CRTC Chairman Konrad von Finckenstein has referred to retail broadband access as “a key foundation for the digital economy”. The CRTC believes that requiring facilities-based operators to provide access to their networks on fair and equitable terms (including matching speeds) will lead to more opportunities for competition in retail internet services which will better serve consumers.

The CRTC’s August 30^th Decision confirms the regime that the CRTC had previously established to apply speed matching requirements to both cable carriers’ TPIA services and to ILECs’ aggregated ADSL services. After the CRTC initially established the rules in 2008, the major ILECs petitioned the federal cabinet to reverse these rules, following which the Government issued an Order in Council in December 2009 requiring the CRTC to reconsider the ILEC rules. The CRTC conducted a proceeding earlier this year to address the Government’s Order.

In its Decision, the CRTC was careful to underscore the need to balance the goals of competitive broadband access at the retail level while at the same time ensuring that the ILECs continue to have the necessary incentives to innovate and invest in broadband facilities. The CRTC stated the importance of building out fibre networks closer to Canadian homes and businesses, which allows for faster internet connections.

To effect this balance among competing concerns, the CRTC approved wholesale tariff rates to ILEC competitors that reflect an additional markup of 10 per cent on its incremental costs. The purpose of the mark-up was to recognize the higher cost of capital for the ILECs needed to construct “fibre-to-the-node” (FTTN) facilities on a widespread basis. According to the CRTC, the new mark-up gave sufficient comfort to preclude any “undue disincentive” for ILECs to continue to invest in FTTN facilities. The ILECs have criticized the CRTC’s Decision as ignoring the significant risks and costs associated with investing in high speed facilities. The ILECs argue that, by mandating access to the ILECs network without putting any risk capital in the ground, the CRTC has effectively permitted competitors to “free ride” off ILEC investments in their transmission facilities.

Some commentators have also raised the concern that the speed matching Decision could have unintended consequences in other markets that depend on access to the ILEC and cable carrier pipe. An example of competing uses of the broadband platform is Bell Canada’s recent announcement of the launch of its new Internet based TV service, known as IPTV.  Bell's IPTV offering is an integrated broadband service which will offer a full TV menu of signals to customers. Bell’s IPTV service offers digital television signals over fibre and last-mile DSL phone lines. Bell is also using this same platform to offer “Fibe”, a premium higher-speed Internet service to customers.

With competing demands on bandwidth for uses such as full TV service, high speed Internet service and now speed-matching for wholesale access to competitors, something had to give. In July, Rogers, one of the cable carriers, announced that it would impose more restrictive usage limits on its “Extreme” and “Lite” services. The new limits will effectively mean that it will take a smaller number of streamed videos before a Rogers’ customer reaches his or her monthly bandwidth cap.

It is interesting to note that some have attributed Rogers’ decision to lower the usage limits on its services to the anticipated entry of services such as Netflix and GoogleTV into Canada. The lower usage limits would make a service such as Netflix arguably less attractive due to the effective economic limits on streaming video over a broadband connection. At the same time, it appears that Rogers has been careful to structure its revised usage limits in accordance with the CRTC’s 2009 Internet traffic management regime, also known as the Canadian “net neutrality” rules. Usage limits that vary according to set prices would be permissible as “economic ITMPs” under the CRTC’s rules.

But back to speed matching: in contrast to providers such as Rogers, competitors who obtain wholesale access to ILEC or cable carrier platforms in many cases do not employ download caps. For example, one such competitor, TekSavvy, offers usage plans for lower fees on an unlimited basis. As a result of these disparate internet traffic management practices between resellers of high speed access and the cable carriers and ILECs, some are speculating that the speed matching Decision could induce a substitution effect, in which customers migrate to high speed Internet services provided by smaller ISPs who can stream high-quality video in huge volumes. This development could boost the success of “over-the-top” internet content-streaming services such as AppleTV and Netflix, to the extent that resellers will be able to obtain wholesale bandwidth at matching speeds and offer access without any bandwidth caps. The proponents of this argument also note that such a substitution effect would also thwart the take-up of the ILECs’ new IPTV offerings.

Whether this purported “zero-sum game” between “over-the-top” internet content-streaming services such as AppleTV and Netflix and the potential success of IPTV can be laid on the shoulders of the speed-matching rules, is debatable. But as increasing demands are made for access to the high speed platform, you can count on seeing more disputes, much of which will be played out along the fault line demarcating CRTC-regulated services such as IPTV and cable television from unregulated uses of the broadband plant by “over-the-top” providers such as Netflix, AppleTV and GoogleTV.

And the debate is far from over: the ILECs have already announced that they will appeal the CRTC’s August 30th Decision to the federal cabinet.*

*UPDATED September 14, 2010:  Technically, the ILECs have no further appeal to Cabinet becuse the current CRTC proceeding was the result of the Cabinet ordering the CRTC to reconsider its 2009 determinations.  Under the Telecommunications Act, the Cabinet now has 90 days to vary or rescind the CRTC's August 30th Decision.

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The recent English Court of Appeal decision in Flood v Times Newspapers Ltd. [2010] EWCA Civ 804 provides some useful (and, thankfully, technologically adept) advice for online news publishers: if you seek to cloak yourself with the protection of "responsible journalism", then make use of the features that online publishing makes available, and update news pieces so that defamatory allegations which have been shown to be false are modified or corrected.  In short, online publications can be easily corrected - and so they should be.

The Flood case concerns an invocation by a newspaper publisher of what in English law is referred to as the Reynolds privilege (first articulated in the House of Lords decision in Reynolds [2001] 2 AC 127 and expanded upon in the Jameel decision [2007] 1 AC 35) a privilege which inspired the creation by the Supreme Court of Canada of the new defamation defence of "responsible communication in the public interest'" (Grant v Torstar Corp., 2009 SCC 61).  While the English Reynolds privilege and the Canadian "RCPI" defence are different, they share much of the same legal DNA, and so developments of the former should be viewed as important for the latter.

The Flood case involved answering two distinct questions: first, was the initial publication (both in print and online) of certain allegations (ie an accusation of bribe-taking) about Mr. Flood protected by Reynolds privilege and, second, if the answer to the first question was yes, once it became clear that the allegations were false and that Mr Flood had not accepted any bribes, did the Reynolds privilege continue to protect the unmodified online version of the story which was originally published?  Put somewhat differently, if the publisher became aware that the defamatory allegations which it had published were false, did the publisher have any obligation to correct or modify the online version of the story to make it clear that the allegations had no factual basis?

The trial and the appellate decisions in Flood (brief comment on the case from John Gregory at Slaw; a longer treatment by Amanda Carpenter at IPilogue) differed as to whether the initial publication was protected by Reynolds privilege (the trial judge decided yes; the court of appeal decided no).  But both courts were in accord that an online version of a defamatory statement has to be modified to take account of subsequent exculpatory evidence if the publisher of that statement wishes to shelter under Reynolds privilege.  As Lord Neuburger noted at paras. 77-78 of his reasons:

The Judge concluded that, even though the original publication, on 2 June 2006, of the article on the Times website, like the publication of the article in the Times newspaper, attracted Reynolds privilege, it ceased to do so after early September 2007, once TNL had been told the result of the DPS investigation and the conclusion reached in the Report. As the Judge put it, at [2009] EWHC 2375 (QB), paragraph 249, "The failure to remove the article from the website, or to attach ... a suitable qualification, cannot possibly be described as responsible journalism. It is not in the public interest that there should continue to be recorded on the internet the questions as to [DS Flood's] honesty which were raised in 2006, and it is not fair to him. It is not in the public interest ... "

On the face of it, at least, that conclusion appears to be not merely one which the Judge was entitled to reach: it was plainly right, and indeed appears to be consistent with the decisions of this court in Loutchansky [2002] QB 783 and (on effectively the same facts) of the European Court of Human Rights in Times Newspapers Ltd v UK (Nos 1 & 2) (application nos 3002/03 and 23676/03), 10 March 2009. If the original publication of the allegations made against DS Flood in the article on the website had been, as the Judge thought, responsible journalism, once the Report's conclusions were available, any responsible journalist would appreciate that those allegations required speedy withdrawal or modification. Despite this, nothing was done.

To echo Lord Neuberger, that conclusion seems manifestly correct: given the ease with which online stories can be corrected, it is astonishing the extent to which they so often are not (I commented on the problem briefly in this piece: Corrections in the Digital Age).  As Lord Justice Moses noted in his reasons in Flood (at para. 119):

That a person is accused is generally of far greater interest than his or her subsequent triumphant acquittal. Once an accusation is dismissed, the blaring headline of accusation on page 1 becomes a tepid reference in the graveyard of page 2.

There seems no compelling reason to allow an online publication to preserve a defamatory statement as if it were in amber - indeed, there seems little cogent argument as to why incorrect (never mind defamatory) statements are not immediately corrected once the correct information is known.  Hopefully the possibility that a lack of correction will suffice to strip a statement of Reynolds protection will properly incentivize publishers to undertake such corrections.

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It has been hard to avoid the extensive media coverage of Quebecor Media’s announcement of its plans to launch a new all-news specialty television channel (selected media coverage: Hill Times; CBC; Globe and Mail). The news channel will have a decidedly populist, right-of-centre perspective, hence the dubbing of the new service as "Fox News North". What is significant from a regulatory perspective is the fact that Quebecor is seeking a rare type of licence from the CRTC, a “Category A” licence, which would grant it the privilege of receiving “mandatory carriage” from major cable and satellite broadcast distributors.

Quebecor argues that mandatory carriage of its channel would counter what it views as a left-of-centre skew by mainstream media. Quebecor will leverage off its current brand of Sun Media properties including its over-the-air television stations serving the Toronto market and its chain of daily Sun newspapers across the country to offer a more conservative take on news.

Whether this channel is of “national importance” is for another debate.  The rhetoric about the need for balance in the current panoply of news choices has overshadowed the key regulatory issues.  The “Category A” licences mandating carriage on basic cable are rarely granted by the federal broadcast regulator.  The Commission had announced a public process earlier this year to consider a new batch of Category A services.  However, that process was delayed until the fall of 2011.  Quebecor is attempting to convince the Commission that its application for mandatory carriage is so important that this process should be ignored.

A more difficult hurdle for Quebecor is the fact that the regulator has now opened up competition to the formerly exclusive genres of mainstream news and sports.  Services such as Newsworld, CTV Newsnet, TSN and Rogers Sportsnet are now subject to open entry and unregulated wholesale rates.  The very essence of Quebecor’s proposed service appears to fall under the mainstream news genre suggesting that Quebecor’s options are limited to obtaining a Category B licence while trying to persuade a broadcast distributor to distribute the service. Quebecor has tried to avoid having its proposed news service categorized under the standard paradigm of a competitive mainstream news service.  It has described the service as an “information and analysis channel” and, therefore, distinct from the competitive all news format. 

However, in a recent staff letter sent to Quebecor, the CRTC rejected Quebecor’s approach, noting that there is little to distinguish SunTV from all other news services. The CRTC has offered Quebecor three options.  First, it could pursue a standard Category B licence requiring it to negotiate agreements with broadcast distributors who would not be required to offer the service.  Second, it is open to Quebecor to recast its current Sun TV over-the-air television station in the Toronto market as an all news service and hope that cable and satellite distributors across Canada will pick it up as a “distant signal” thereby patching together a patchwork network across the country.  Quebecor’s third option is to bide its time until the CRTC considers a batch of Category 1 applications in the fall of 2011.

 Standby for more talking heads on this issue.

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Depending on the type of news websites and television shows you frequent, it was difficult last week to escape the near-constant reporting surrounding the public release of telephone conversations between Mel Gibson and his ex-girlfriend (Howard Kurtz at the Washington Post has a detailed discussion of the matter ("Mel Gibson hits the Radar screen"), with particular focus on the behind-the-scenes maneuvering among various competing media outlets). 

One peripheral issue which the Gibson drama raises is the question of when, if ever, an ostensibly "private" telephone conversation can be recorded.

In the United States, the answer to that question varies from state to state.  So, for example, in California, it is illegal to record a telephone conversation unless all parties on the call have consented (subject to some exceptions where a crime is being discussed).  The Citizen Media Law Project has a useful summary of the relevant federal and state laws in the United States.  THR, Esq. also has a short piece on how some of those laws may impact on the Gibson matter.

In Canada, the answer is somewhat more straightforward: so long as one party to the conversation consents to the recording, there is no legal prohibition on recording a telephone call (see Section 184 of the Criminal Code).  In other words, you can legally record a conversation which you are a part of, but you cannot legally record a conversation on which you are simply eavesdropping, unless one of the parties to the conversation is aware that you are recording and consents to it.

Michael Dew has written a comprehensive analysis of the issue: "Is it legal to record a private conversation? Wiretapping and the one party consent exception to the rule against interception".

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In a Decision released on July 7th (see CBC News story (ISPs not broadcasters, court finds),  on-line version of decision not yet available), the Federal Court of Appeal has ruled that ISPs that merely provide access to broadcasting are not "broadcasting" under the Broadcasting Act. Therefore, the CRTC cannot justify imposing contribution levies on ISPs as it currently does for cable and satellite broadcast distributors (BDUs) under broadcasting legislation.

The Court's ruling effectively thwarts (subject to any appeals) the proposals by Canadian creator groups to require ISPs to contribute toward the funding of Canadian new media content. The Court's ruling is based on the ISPs' "content-neutral" approach in providing access to users. In an analysis similar to that of the Supreme Court of Canada in a leading copyright case (the Tariff 22 decision between SOCAN and the Canadian Association of Internet Providers), the Federal Court of Appeal determined that the definition of “broadcasting” under the Broadcasting Act is also directed at the person who "transmits" a program. A person whose sole involvement is to provide the mode of transmission is not transmitting the program and hence, is not “broadcasting”.

An ISP whose sole involvement is to provide the mode of transmission would have no control or input over the content made available to Internet users by content providers. The ISP acting in this way does not "select, originate or package programming", which is precisely what a BDU does. ISPs are therefore not an element of the broadcasting system (although their activities would continue to be governed by the Telecommunications Act). This in turn means that ISPs cannot be required to achieve broadcasting policy objectives through measures such as financial levies. Only those who “transmit” the “program” can contribute to these objectives. 

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Michael Geist provides an interesting discussion on the business practice of "geo-blocking" (see 'Geo-blocking' websites is a business rather than legal issue). Broadcasters, sports leagues, music services and other rights holders employ geo-blocking (also referred to as "geo-gating") to protect the value of their content on the Internet. Not surprisingly we are increasingly seeing the Internet adopt geography-based licensing as rights holders wish to maximize the value of their rights. A common misunderstanding among Canadian-Internet users is to blame "outdated laws" for the inability to access audio or video links due to geo-gating practices. Geist correctly observes that, in reality, geo-gating is "invariably a business issue, not a legal one".

But the subtext in Geist's piece is somewhat puzzling: he appears to suggest that geo-blocking practices are outdated. Geist argues that geo-blocking will only disappear "only if the business models they support give way to global approaches that make the borderless Internet a reality". But Geist's vision for a more ideal Internet environment is arguably unrealistic and at the very least runs afoul of ordinary business practices. Geo-blocking is a perfectly rational response to bringing some order to the chaos of the Internet.  To use Geist's phrase, the Internet is a "a 'borderless' world that has little regard for the physical location of users". Micro-economists and other organizational theorists have recognized that there are "bounds to rationality" on many types of arrangements including in the business world.  In the absence of measures such as geo-blocking, right holders would find it difficult if not impossible to clear rights in multiple jurisdictions. Without  some mechanism to enforce program rights across multiple territories, the potential economic returns from the distribution of high-cost high revenue programs such as feature films or World Cup games would be threatened.

In fairness, Geist is correct that the business arrangements around geo-gating have in some cases resulted in delays for Canadian users in accessing content on the Internet until distribution platforms such as iTunes could sort out the rights issues. But the point is, these issues were sorted out. As Geist himself concedes, Canadian platforms have successfully secured Internet rights for domestic Internet audiences (eg, Canadian users must view The Daily Show on CTV's Comedy Network site and cannot access the content on the US broadcaster's site). These internet fences should not be viewed as shackles. Rather they are perfectly reasonable tools to ensure the continued ubiquitous access to content on all platforms across the inter-connected world.

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Marie-Andree Weiss wrote an interesting post recently comparing the treatment of post-mortem rights of publicity in California and New York (Marie-Andree's post was prompted by the then-pending enactment of California Assembly Bill 585, which extended publicity rights to deceased persons who were not famous during their lifetime, but became famous as a result of their death).

The Canadian analogue to the right of publicity is the tort of appropriation of personality.  Ad Idem (the Canadian Media Lawyers Association) hosts Mitchell A. Flagg's article Star Crazy: Keeping the Right of Publicity out of Canadian Law, which offers a lengthy treatment of US, Commonwealth and Canadian law on the topic.  Anna Shahid, writing at IPilogue, provides a very handy short overview on the tort of appropriation of personality, which includes this conclusion about post-mortem rights in Canada:

Furthermore, the personality rights of an individual survive the individual’s death and allows for his or her heirs to protect the unauthorized use of such rights. It is unclear whether the rights expire after some time has lapsed since the death of the individual. However, ‘it seems reasonable to conclude that whatever the durational limit, if any, it is unlikely to be less than 14 years’ (Glen Gould Estate v. Stoddart Publishing Co. Ltd., 1998 CanLII 5513 (ON CA)).

Additional short-form sources include Rob McDonald and Chad Zima's “I am the Greatest” - The Use of Celebrity Endorsements and Images and Daniel Anthony's Got Personality? How Can You Protect It?.  Lengthier academic treatment is available in Susan Abramovitch's “Misappropriation of Personality” (33 Canadian Business Law Journal 230 (2000)), and David Vaver's “What’s mine is not yours: Commercial appropriation of personality under the Privacy Acts of British Columbia, Manitoba and Saskatchewan” (15 UBCL Rev 241 (1981))

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Following up on last week's post about the Supreme Court of Canada's decision in R. v. National Post, 2010 SCC 16, Cris Best, writing at The Court.ca, has an in-depth analysis of the decision.

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On Friday, May 7, 2010, the Supreme Court of Canada issued its decision in R. v. National Post, 2010 SCC 16.  The decision is notable for its definition of the contours of a journalist's right to "shield" confidential sources and materials from the investigate powers of the state - from the headnote:

In appropriate circumstances, accordingly, the courts will respect a promise of confidentiality given to a secret source by a journalist or an editor. The public’s interest in being informed about matters that might only be revealed by secret sources, however, is not absolute. It must be balanced against other important public interests, including the investigation of crime. In some situations, the public’s interest in protecting a secret source from disclosure may be outweighed by other competing public interests and a promise of confidentiality will not in such cases justify the suppression of the evidence.

The decision has, as expected, generated an enormous amount of coverage and commentary.  From Kirk Makin writing in the Globe and Mail:

The Supreme Court of Canada slammed the door shut Friday on a concerted attempt by the press to broaden its rights to protect confidential sources.

In an 8-1 ruling, the court said that in an age of blogging, Twittering and long-range microphones, the media are too amorphous to enjoy such a right and too ungovernable to exercise it properly.

“The bottom line is that no journalist can give a source a total assurance of confidentially,” the majority said. “All such arrangements necessarily carry an element of risk that the source’s identity will eventually be revealed.”

Mr. Justice Ian Binnie said it was a “simplistic proposition” to suggest that a journalist should be able to decide on his or her own whether to grant blanket immunity to a source.

To grant a right to administer blanket immunity to a trade that has no professional regulation and vastly differing ethical standards, “would blow a giant hole in law enforcement and other constitutionally recognized values such as privacy,” the majority said.

From the National Post editorial about the decision:

Let us be clear about what was at issue in this case: Whether or not the loan-authorization document was a forgery, it is not disputed that Mr. McIntosh believed that X thought the document was genuine. Indeed, X had provided Mr. McIntosh with independently verifiable material in the past, and expressed a willingness to sign an affidavit confirming that s/he did not alter or forge the loan-authorization document.

This case thus goes to the very lifeblood of investigative journalism — the good-faith insider who comes forward with information that s/he believes casts important light on powerful individuals and institutions.

To their credit, every Supreme Court Justice responded to the facts of this case by recognizing that journalists do enjoy a case-by-case privilege that permits them to shield confidential materials from the police — thereby acknowledging that the free-speech freedoms contained in our Charter imply a freedom to report and gather information as well. This is an established principle in many Western jurisdictions, but it was the first time it been definitively articulated in this country.
Unfortunately, we learned, this privilege applies only in cases where journalists succeed in proving that “the public interest served by protecting the identity of the informant from disclosure outweighs the public interest in getting at the truth.”

From the Toronto Star report on the decision, by Tonda MacCharles:

In a landmark ruling, Canada’s highest court says journalists do not enjoy a constitutional right to shield the identity of sources during police investigations.

Yet, in a decision hailed by some media lawyers for recognizing the value of investigative journalism , the Supreme Court of Canada declared Friday sources may be shielded on a case-by-case basis.

The onus, however, is on a media outlet to prove the public interest in protecting a source outweighs the interest in investigating a crime.

Commentary from around the internet includes a thoughtful piece by Ravi M. Singh and from Sheldon Toplitt at The Unruly of Law.  Readers at Slaw parse the distinctions between bloggers, Twitterers and journalists.

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