On June 13, 2014, the Supreme Court of Canada delivered the landmark decision of R. v. Spencer (“Spencer“). In this decision, Mr. Justice Thomas Cromwell, writing for the Court, set out the ground rules for police to obtain subscriber information from Internet Service Providers (“ISPs”). In doing so, the Court effectively put an end to the practice of the police informally requesting, and ISPs providing, such subscriber data without a warrant. Despite the objections raised by the Director of Public Prosecutions (an intervener) that “recognizing a right to online anonymity would carve out a crime-friendly Internet landscape by impeding the effective investigation and prosecution of online crime”, the Court ruled that it is important to look beyond “mundane” subscriber information such as a user’s name and address, and instead recognize the reality that such information has the potential to reveal intimate details such as lifestyle and personal choices. Spencer did not go so far as to enshrine a constitutionally protected right to online anonymity. However, it remains to be seen how some might seek to apply the decision in the civil fraud context. One’s ability to obtain a court order to preserve and produce user data from an ISP should, in theory, remain unaffected, if such an order would have otherwise been available. In a civil dispute between private parties, the power of the state is not involved, and the liberty of an accused is not at stake. In a previous post on CanadianFraudLaw, we discussed a Federal Court decision to order an ISP to release the names and addresses of subscribers who were suspected of having infringed an American film company’s copyrights in Voltage Pictures LLC v. John Doe and Jane Doe (2014) FC 161 and the significant protections put in place by the Federal Court as a prerequisite to ordering the release of the user information. The ruling by the Supreme Court in Spencer may provide additional context for the balancing of rights and interests of private parties in the civil context. So too, it remains to be seen how legislative intervention in this area, particularly Parliament’s Bill S-4, known as the Digital Privacy Act, passed by the Senate a week after the Court’s decision in Spencer, will affect this balancing of rights and interests. We will be closely monitoring this space. This article was first posted on CanadianFraudLaw.
Ahmed Shafey is a member of the Baker McKenzie's Litigation and Financial Restructuring & Recovery practice group in Toronto. He maintains a diverse commercial litigation practice, providing advice in the context of contractual disputes, professional liability actions, shareholder disputes, product liability actions, government procurement litigation, international commercial arbitrations and bankruptcy and insolvency proceedings. He has also been engaged in a number of civil fraud and asset recovery matters and business crime investigations. Mr. Shafey is known for his focused and practical advice and has had success at all levels of the Court in Ontario as well as with a number of Boards and Tribunals. He is a frequent contributor to www.canadianfraudlaw.com.