Friday, February 22, 2019

Piracy v. Privacy – The Federal Court Significantly Restores the Balance in Canadian Mass Copyright Litigation by Insisting on “Best Available Evidence”

Today’s ruling by the Federal Court of Canada in ME2 Productions, Inc. v. Doe, 2019 FC 214 is a reiteration and affirmation of the landmark ruling by Judge von Finckenstein in the first of these Canadian copyright “Doe” cases 14 years ago.   That BMG decision, which was upheld by the Federal Court of Appeal, made it clear that the Court will require substantial, admissible, reliable affidavit evidence that can be cross-examined upon. Today’s ruling notes that “…the key evidence that is found in the Arheidt Declaration is hearsay which cannot be subject to cross-examination since it is simply an exhibit to the affidavits. This is exactly the type of evidence which was rejected in BMG, which remains good law.”  In today’s ruling, Judge Pentney refers several times to the need for “the best available evidence.”

The Court in BMG was then and is now still rightly concerned that hearsay evidence creates the “risk that innocent persons might have their privacy invaded and be named as defendants where it is not warranted” and such evidence will not suffice if “no grounds are provided for accepting” it. I was proud to argue the BMG case, along with Alex Cameron, on behalf of CIPPIC. Shaw and Telus also put up a very good fight for their customers privacy then and did the heavy lifting on cross-examination. Bell and Rogers were at least somewhat supportive of their customers’ privacy. Videotron supported the record companies. Here’s a still useful balanced analysis of this case by Richard Naiberg, counsel for the record companies on appeal and me.

Teksavvy is to be commended for standing up for its customers’ privacy in this instance. Unless today’s ruling is overturned on appeal, which seems unlikely, the inevitable question will be how this ruling might affect other similar copyright mass litigation “Doe” cases if they rely on similar evidence to obtain the Norwich disclosure orders.  In the battle of “piracy” v. “privacy”, it’s good that the balance in Canada has been significantly restored.


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