Teresa Scassa - Blog

Teresa Scassa

Teresa Scassa

Both globalization and the rapid development of communications technology have created an environment in which a very wide range of human activity can no longer be exclusively confined within the boundaries of any one state. Transborder commerce, communications, and crime are ubiquitous. The global movement of labour and capital, combined with widespread attempts to harmonize national laws to international standards also contribute to an environment in which the role of the nation state is greatly altered. As a result, the extent to which states can exercise jurisdiction over matters that take place outside their borders has become increasingly dynamic and controversial under international law. The goal of the project is to critically examine the use of extra-territorial jurisdiction by states and to formulate an analytical framework to help Canadian law and policy makers in making principled decisions on the issue.

My own work on this project has focussed on internet and privacy issues. A new paper exploring extraterritoriality in the context of the internet, co-authored with Robert Currie will be forthcoming shortly in the Georgetown Journal of International Law.

This SSHRC funded research project is being carried out with Stephen Coughlan, Robert Currie and Hugh Kindred of Dalhousie University.

Geospatial information (GI) has become widely used by government, the private sector and by ordinary individuals for an increasingly diverse range of purposes.  GI forms the basis for GPS systems and maps; these in turn are used in a broad range of applications which include navigation tools, land use planning, resource management, mobile marketing, tracking and surveillance.

This project, which is funded by the GEOIDE network, brings together researchers from law, geography, engineering and geomatics to explore some of the legal and ethical issues raised by this near ubiquitous use of geospatial information.  For example, work has been done on issues around the quality of geospatial data, and its suitability for use in various contexts.

As one of the legal experts involved in the project, my work has explored issues along two main axes.  First, I have looked at questions surrounding the ownership and licensing of geospatial data. Second, I have explored issues around geospatial data and privacy, including those raised location-based services, intelligent transportation systems, and information maps.

Publications related to my work on this project can be found in my publications list under the heading geospatial/digital cartography.

Public Protection and Ethical Dissemination of Geospatial Data – Social and Legal Aspects

Ambush marketing took on major event proportions at the Vancouver Olympics, as many large corporations sought to create associations with the event without falling afoul of s. 4 of Canada’s Olympic and Paralympic Marks Act. Perhaps the cheekiest example was Lululemon’s new clothing line titled “Cool Sporting Event That Takes Place in British Columbia Between 2009 & 2011 Edition.” Ambush marketing was also in the news around the FIFA World Cup of Football held in South Africa in the Summer of 2010. The most notorious incident linked to that event was the arrest of Dutch women who had the temerity to wear orange dresses, supplied by a Dutch brewery, to one of the matches.

“Ambush marketing” activities have frustrated major sporting event organizers and sponsors for years. Such activities are seen to detract from the value of lucrative event sponsorships, yet they have been difficult to curb under trademark law or the law of passing off. This is largely because most ambush marketing does not make use of the trademarks of others, nor does it attempt to create confusion as to the source of wares or services. Instead, ambush marketing tries to benefit from the buzz surrounding a major event by creating an association in the minds of consumers between the advertiser and the event. Event organizers, on the other hand, view the goodwill associated with the event as a form of property.

In the last decade, major sporting event organizers such as the International Olympic Committee and FIFA have pressured national governments to pass legislation prohibiting ambush marketing as a condition of a successful bid to host an event. Indeed, legal protection against ambush marketing is now a requirement for a successful bid for an Olympic Games. Anti-ambush marketing legislation has already been enacted in many countries, including the UK, Canada, South Africa, Australia and New Zealand. The statutes in these jurisdictions reveal an emerging “right of association”.

In a paper which should be out in the Sports Management Journal in the summer of 2011 (titled: Ambush Marketing and the Right of Association: Clamping Down on References to that Big Event with All the Athletes in a Couple of Years, PDF now available here) I survey the evolution of the right of association and discuss its key features. I argue that the need for such a legislated right has never been properly established. I also argue that anti-ambush marketing legislation is overly broad, does not reflect an appropriate balancing of interests, and may infringe upon the freedom of expression. In particular, the legislation removes the right to make commercial associations, however minor, with a major event taking place within a community. The laws do not just target major corporations who might have bid for sponsorship rights. They affect small local businesses as well, including those who might simply want to get into the spirit of the event that has transformed and taken over their community.

In a recent case, Jones v. Tsige, (2011 ONSC 1475) Justice Whittaker of the Ontario Superior Court granted a motion for summary judgment in law suit which the plaintiff had argued that the defendant had invaded her privacy when she accessed her personal banking information 174 times in a 4 year period.  The defendant argued that there was no such action at common law in the province of Ontario.
    The defendant worked for the Bank of Montreal (BMO). She allegedly accessed the plaintiff’s banking information because she was in a relationship with the plaintiff’s ex-husband and wanted to see if he was paying child support to the plaintiff.  The defendant’s actions were eventually noticed by her employer, which disciplined but did not fire her.  Jones then sued Tsige for damages for invasion of privacy and for breach of fiduciary duty.  Justice Whittaker found that no fiduciary duty was owed on the facts.  The dispute turned, then, on whether there was a recognized tort of invasion of privacy in Ontario.
    In reaching the decision that no such tort existed, Justice Whittaker mistakenly indicated that it would have been open to Jones to bring a complaint against Tsige under the Personal Information Protection and Electronic Documents Act (PIPEDA). While that statute might have permitted Jones to bring a complaint against BMO, the statute does not apply to “personal information that the individual collects, uses or discloses for personal or domestic purposes and does not collect, use or disclose for any other purpose.” Here, Tsige was apparently collecting the information for her own personal purposes. The decision is thus based on the erroneous view that Jones could have had the remedy she sought by bringing a complaint under PIPEDA, followed by an application to the Federal Court under s. 14 of that Act for a remedy which could include damages. 
    Justice Whittaker’s misunderstanding of PIPEDA and its scope seems central to the outcome of this case.  Later on, he comments that because of the other statutes that exist to address privacy issues, such as PIPEDA, there was no “legal vacuum that permits wrongs to go unrighted.” (at para 53) As noted above, however, PIPEDA only applies where information is collected, used and disclosed in the course of commercial activity, and it does not apply in a range of other circumstances, including private or domestic contexts.  Invasion of privacy tort cases in those provinces which have created statutory torts frequently arise precisely in the context of disputes between neighbours or family members. (For just a few examples, see: Watts v. Klaemt, Wasserman v. Hall, Lane v. Lane, and Nesbitt v. Neufeld).
Justice Whittaker goes on to note that “[s]tatutory schemes that govern privacy issues are, for the most part, carefully nuanced and designed to balance practical concerns and needs in an industry-specific fashion.” (at para 56) Once again, these comments seem oriented towards the private sector data protection context.  Provincial statutes that establish torts of invasion of privacy (in Newfoundland, Manitoba, Saskatchewan and B.C.) do not duplicate the territory covered by private sector data protection legislation. They create recourse where there is a wilful and intentional violation of a privacy right. 
In reaching his decision, Justice Whittaker also reviewed case law in Ontario on the issue of whether there is a tort of invasion of privacy.  He noted that such a cause of action appears to have been recognized in Saccone v. Orr, (1981) 19 C.C.L.T. 37 (Ont. Cty Ct.), although he distinguished this case by noting that in Saccone the plaintiff had demonstrated actual harm.  Both Somwar v. McDonald’s Restaurants of Canada Ltd and Nitsopoulos v. Wong are cases in which Ontario courts declined to dismiss actions for invasion of privacy on the basis that they did not disclose a reasonable cause of action. The courts in both cases considered that the existence of such a tort was at least arguable.  Justice Whittaker did not take note of Caltagirone v. Scozzari-Cloutier, [2007] O.J. No. 4003 (Ont. Small Claims), a decision which actually recognized the tort.
    In spite of case law suggesting that a tort of invasion of privacy might be emerging at common law, Justice Whittaker chose to consider himself bound by comments of the Ontario Court of Appeal decision in Euteneier v. Lee.  The plaintiff in that case sought damages under the Charter for police conduct related to a strip search. The damages she sought were linked to what she claimed was harm to her privacy and dignity interests.  The Court of Appeal observed that there was no “’free standing’ right to dignity or privacy under the Charter or at common law.” (at para 63)  Justice Whittaker interpreted this comment, decided in a case involving a very different context, to mean that there was no tort of invasion of privacy at common law. 
    The decision is disappointing not just for its failure to recognize a tort law recourse that seems ripe to emerge at common law, but also for the way in which it misrepresents the nature and extent of recourse currently available under data protection statutes.   The decision is currently under appeal.

"Patents for Second Medical Indications:  Issues and Implications for Pharmacare in Canada" (March 26, 2001).  Report prepared for Health Canada.

Teresa Scassa, Theodore Chiasson, Michael Deturbide, Anne Uteck, An Analysis of Legal and Technological Privacy Implications of Radio Frequency Identification Technologies, April 28, 2005.  Report Prepared under the Contributions Program of the Office of the Privacy Commissioner of Canada.

Stephen Coughlan, Robert Currie, Hugh Kindred and Teresa Scassa, Global Reach, Local Grasp: Constructing Extraterritorial Jurisdiction in the Age of Globalization, Prepared for the Law Commission of Canada, May 31, 2006.

Saturday, 21 April 2007 09:47

Extension of Intellectual Property Rights

“Extension of Intellectual Property Rights”, prepared for the Competition Bureau and Industry Canada, April, 2007.

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