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Fight over YouTube viewer records highlights privacy issues

|Written By Robert Todd

The U.S. law being used in the copyright infringement lawsuit between Viacom and Google may not apply to Canadian jurisdictions, but experts say lawyers and companies in this country should take note of the case, which last week highlighted contentious privacy issues.

Mark Hayes says litigators dealing with personal information in the disclosure stage should start considering privacy issues from the start.

The case pits U.S. media conglomerate Viacom against internet giant Google, owner of the online video site YouTube. Viacom wants Google to pay it $1 billion over allegations that YouTube’s success has come on the back of the illegal posting of Viacom shows.

In a July 1 ruling in the case, U.S. District Judge Louis Stanton ordered Google to produce a database of viewership records that includes user login ID’s and internet protocol addresses.

That decision prompted outcry from privacy advocates, including Ontario Privacy Commissioner Ann Cavoukian, who said the information “can reveal a great deal of sensitive personal information.”

The companies later reached a deal wherein Google will produce the data, but in a form masking user identities.

“We remain committed to protecting your privacy and we’ll continue to fight for your right to share and broadcast your work on YouTube,” reads a statement posted last week on YouTube’s blog.

Mark Hayes, a partner in Blake Cassels & Graydon LLP’s Toronto intellectual property group, says privacy issues raised in Canadian litigation cases have to this point largely been “steamrollered,” with courts favouring the acceptance of all information.

“But what we’re now seeing, and I think the situation that occurred in the U.S. really indicates that there are some absolutely huge databases of personal information out there that may or may not be relevant to litigation that might be started by parties,” he says.

Hayes says Canadian litigators dealing with personal information in the disclosure stage should start considering privacy issues before they make demands or provide disclosure.

“Parties have to really think about the privacy implications of disclosure in an action, both on the disclosing side and on the receiving side. Because if you ask for more than you really need, you may first of all not get it, and second of all, even if you do get it, you may find yourself somewhat limited in what you can do with the information.”

David Fraser, an associate at McInnes Cooper in Halifax, N.S., who specializes in technology law, notes that IP addresses are protected by PIPEDA as personal information.

“In Canada, a judge would be much more inclined to say that this is personal information related to people who aren’t even involved in the litigation, and protection measures need to be put in place,” says Fraser.

But more importantly for lawyers and companies, says Fraser, is the importance of purging superfluous information.

“You shouldn’t retain information for longer than you need it,” he says. “A lot of internet companies, they log everything, because that’s the default function of all their software, and then they hang on to it indefinitely.”

But PIPEDA states that companies can only retain information as long as it’s reasonably necessary, notes Fraser.

“If you have it, that means you have to protect it, and that means it’s available for things like litigation that you’re involved in, and it’s available for other peoples’ litigation.

“My personal view is it’s not your job to police your customers, and so you shouldn’t be collecting information that’s not necessary, simply for the purpose where the only real reason for it would be to make it available to law enforcement, or to private litigants,” he says.

Fraser notes that companies may wish to keep information, such as that held by Google, for their own purposes. But if that’s the case, he says, they can make that information anonymous and get the same benefit.

“Then it serves the same type of logging functions, without compromising user privacy,” he says. “I think that’s the key lesson: don’t collect it in the first place if you don’t need it at all.”

While Canadian companies should take heed of the Viacom/Google case, University of Ottawa internet law professor Karen Eltis says the matter also highlights the different visions of privacy in Canada and the U.S., and the fact that internet users are often held accountable to unfamiliar, foreign laws.

“Here we see corollary of the borderlessness of the internet, where there’s often unilateral application of coercive foreign law or foreign decisions to Canadians,” she says.

“It remains to be seen what happens in this case, but individuals in Canada may be subject to sanctions or invasions of privacy, infringements on their human rights, that are meted out in courts by virtue of distant laws, that are made of course by governments that are not accountable to them.”

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