- There isn’t much difference between not opposing and supporting a motion. Whatever the difference is, it really doesn’t normally matter for practical purposes. A motion that is not opposed will usually be granted;
- Asking for an adjournment is hardly equivalent to “challenging” a motion; and,
- The reference to an “anonymous” opinion that there is a risk to an ISP’s “safe harbor” and “”neutrality” status by standing up for its customers’ privacy under PIPEDA is not helpful. It would be very interesting if any knowledgeable lawyer were to make such a point in their own name.
Sunday, January 13, 2013
Update re Voltage & Teksavvy
For a whole lot of reasons, I don’t have a whole lot of time to spend on David Ellis’ lengthy and largely inaccurate posting about the Voltage case and Teksavvy’s role – or lack thereof - in the current case. Let me simply say:
In the BMG case, the Court was very concerned that inaccurate and unreliable evidence could lead to innocent persons being sued. In paragraph 21, the Court dealt with the problem of hearsay evidence:
Much of the crucial evidence submitted by the plaintiffs was hearsay and no grounds are provided for accepting that hearsay evidence. In particular, the evidence purporting to connect the pseudonyms with the IP addresses was hearsay thus creating the risk that innocent persons might have their privacy invaded and also be named as defendants where it is not warranted. Without this evidence there is no basis upon which the motion can be granted and for this reason alone the appeal should be dismissed. (Emphasis added)
In paragraph 43 of its decision, the Court stated in the context of dated information that:
If there is a lengthy delay between the time the request for the identities is made by the plaintiffs and the time the plaintiffs collect their information, there is a risk that the information as to identity may be inaccurate. Apparently this is because an IP address may not be associated with the same individual for long periods of time. Therefore it is possible that the privacy rights of innocent persons would be infringed and legal proceedings against such persons would be without justification. Thus the greatest care should be taken to avoid delay between the investigation and the request for information. Failure to take such care might well justify a court in refusing to make a disclosure order. (Emphasis added)
If, as Mr. Ellis states, there was in the current instance such a “problem of cleaning up the many false positives and other errors in the primary evidence, Voltage’s numeric IP file”, then one might well ask why this alone would not be enough to easily and successfully oppose the disclosure motion.
See also Jason Koblosvky's response to Mr. Ellis.