Privacy issues reshaped
by technological change
DONALEE MOULTON
Cyberbullying and online privacy have become real-world
issues in recent months—but
they also show how out of sync
the law has become with the matters of free speech and the Internet, legal experts suggest. And,
existing common law may not be
strong or flexible enough to fix
what lies ahead, they warn.
“Some of our older conceptions of common law are being
severely tested by the Internet.
There was a belief that the law
could absorb technology into its
existing framework, but we are at
a point now where technology is
causing some of the common law
tenets to break down,” said Robert Currie, director of the Law
and Technology Institute at Dalhousie University in Halifax.
He pointed to defamation as
an example of the disconnect.
“Defamation has always been
territorial, but Internet defama-
tion can occur simultaneously in
many jurisdictions. It can be
argued this is a whole universe
of difference.”
Lisa Munro, a partner with Ler-
ners LLP, said: “The law has been
evolving on the question of juris-
diction on the Internet. We need a
new test to deal with this problem.”
Munro, co-counsel to Conrad
Black in his defamation case cur-
rently pending before the Supreme
Court of Canada on the issue of
jurisdiction, was one of three legal
experts exposing and exploring
online legal risks at a recent sym-
posium hosted by the Law and
Technology Institute.
Currie
safeguards are necessary. There
should be a higher burden placed
on the litigant to indicate their
intention to sue and perhaps make
a prima facie case for defamation.”
Those recommendations come
as a Nova Scotia case that puts a
twist on the usual release of names
makes its way to the Supreme
Court of Canada. In this instance, a
young girl who was cyberbullied
wants her identity to remain
anonymous. Her request has been
repeatedly denied by the courts.
Privacy issues are also being
reshaped in a world where Face-
book and other social media are a
way of life. Traditionally, Currie
said, privacy has been viewed as a
public law issue, one that is regu-
lated publicly. “But privacy law
issues are beginning to infiltrate
civil litigation. In discovery, for
example, defendants and litigants
alike are beginning to assert pri-
vacy rights.”
Online intimidation was also
addressed in the Eminent Speak-
ers Series as a serious and perva-
sive problem.
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Securities warnings to stop high tech fraud
CSA’s fake website
shows new-age tricks
of age-old scamming
DONALEE MOULTON
There’s buzz in the marketplace
over BlueHedge Investments, a
new green energy company with a
lot of promise—that is, a lot of
promise to educate lawyers and
their clients about scams.
The fictitious firm is at the
centre of a fraud awareness campaign, complete with fake website, created by securities commissions across the country to
show how even savvy investors
and legal counsel can be duped.
“The site is trying to demonstrate that fraud has moved
online,” said Natalie MacLellan,
spokeswoman for the Nova Scotia
Securities Commission in Halifax. “We’re telling investors all the
time to double click everything” —
to delve deeper into what the
website is actually offering.
The Canadian Securities
Administrators’ educational
initiative includes online adver-
tisements and social media pro-
motions that point to a video and
BlueHedge’s phony website to
illustrate how scam artists use
these tools to lure unsuspecting
investors in cyberspace. Soon
after people land on the faux
firm’s www.bluehedge.ca website,
they are redirected to an educa-
tional website (www.bluehedgeis-
ntreal.ca) to help them recognize,
avoid, and report investment
scams they might find online or
via social media.
Some research
indicates that it is the
educated investor that
is more likely to be
duped. They’re more
confident. That can be
a downfall. You have
to be aware of what
you don’t know.
“
Natalie MacLellan, Nova Scotia
Securities Commission
The CSA has released a list of
the top five “traps” scam artists
are using:
Energy investments: Oil
always sounds good, and swind-
lers continue to attempt to trick
investors with the lure of
untapped reserves or new energy
technologies.
“Many of the scams we see
today are variations of an old
theme,” said Dickey. “Fraudsters
will tailor their scams to fit the
audience they are trying dupe.”
They will change also their
message to reflect economic times,
and what is topical, he added.
Despite the opportunities
afforded by the Internet and the
economic downturn, securities
fraud in Canada does not seem to
be tricking more and more Can-
adians. “It doesn’t seem to be get-
ting worse,” MacLellan said.
“We’ve been tracking incidents
for four to five years and the
trends are relatively the same.
Approximately 20 per cent
believe they have been
approached, and four to five per
cent have been taken in.”
What is on the rise is the
crackdown on scammers. “In the
past few years, CSA has experi-
enced an increase in enforce-
ment cases in areas such as
illegal distributions. However, it
is difficult to say if this increase
is related to the economic down-
turn or other factors,” Dickey
said. “What we can say is that we
do see investors who fall for
false promises because they are
looking for a quick way to recoup
any financial losses they may
have experienced.” n
