 I'm really wanting to thank our speakers for putting so much thought into this and giving us something to chew over a bit. That's a technical term, chew over in our debate. Are we good now? Okay. So, again, what I'm going to do is moderate in the sense of I'll take the questions, you can direct them to whomever on the panel you would like. I'll just repeat it for the benefit of the recording so that your sophisticated intelligent question will be preserved for posterity and webcast on our website. Open the floor. I'm curious as to how, I guess I'll go with an example from my hometown in New Brunswick where a woman was abducted in broad daylight and held for a couple of months and during that time, all the sort of conventional social media outlets were used to sort of say, where is she? Let's find her. So her picture was ubiquitous. You know, you couldn't get away from it on a daily basis. Finally, with the trial, there was a publication ban. So it almost seems like a redundant step. I'm curious as to how the law is going to sort of deal with, in fact, you know, nothing's off limits, it seems, with the internet. I'm not sure if that sounds like a question as an observation. I guess the question is if we're going to recast privacy law, what do we do about the problem of pre-proceeding publicization when there's already information out there and floating out there on the internet available for gathering? I guess there's several levels of response to that. In a more legal response first, I guess if in fact there's no value served in the publication ban because it's already out there in a strictly legal sense, what's the point? I suppose this goes to the broader argument about reconceptualizing what we mean by privacy. If, in fact, it's defined more as a human right sort of grounded in the dignity of the person, then maybe she could pursue civil actions for the prior exposure and invasion of her privacy. That's a good or bad idea. But I think that would probably open that up. If you took the more traditional definition of privacy, what's her reasonable expectation of privacy? Certainly once it's already pictured everywhere as everywhere, her reasonable expectations small to none. So on that definition, it's kind of a useless thing. If you look at it as a violation of your personality and your basic human dignity, then the fact that it's already happened doesn't necessarily end it. She can't ever kind of regain her privacy. I mean once privacy, especially in the digital world, once privacy is invaded, she can't take it back. But I suppose from a legal way of looking at it, does she maybe have some claims for damages as a result of that privacy invasion? And to get there, I think we have to have a more enriched kind of concept of what privacy is. That's a big jumping off from the AB case, but I think that's a very large issue in the modern world where privacy is absolutely under threat at all levels. And what if anything are we going to do about that? So I think it's a good illustration of maybe the value of a broader conception of privacy. And the AB case doesn't directly address that at all other than citing this one article I referred to. And they didn't necessarily take it for that point. But I think it raises that broad question. James, you want to jump in? I think I'd answer it coming from a different perspective. And I'd say two things in response to what your question raises. One of them is instances of tremendous pre-publicity before the application for the discretionary publication ban. The fact that existence of tremendous pre-publicity is a consideration at the publication ban motion stage. One of the things a judge or a court will ask itself is whether the information that is sought to be banned is already out there in the public domain. And in fact, you saw that very recently in the Ontario Court of Appeal in the Colonel Williams case, the divorce case. The Ontario Court of Appeal made the point that much of the information that was sought to be banned had already been extensively published. That's one aspect, I think, that arises from your question. The other aspect of it is, and it's a constant debate, it's the efficacy of a publication ban in the Internet age. How effective are publication bans when the Internet can reach across global borders? I'll tell you that that was a debate that was occurring before the Internet was prominent. And you saw that debate in Bernardo and in Pickton in circumstances where that had attracted great American media interest. And the concern in those cases is that the publication bans were not effective against the American media who were broadcasting across border and, to a lesser extent, distributing newspapers across border. The Buffalo News, for example, and the Bernardo case. And these days, the question is constantly being asked, is a publication ban effective in light of the Internet? I think the answer to that is that a publication ban is still effective. And there are different ways to tailor your publication ban relief. If you've got a particularly high-profile case with a possibility for Internet reporting of the case, there is wording you can use in the relief. And in the case of Pickton, the judge is prepared to go so far as to exclude American reporters, if necessary. Those were a couple of the tangents that your question raises, I think. Michelle, any news on that one? No views on that one. Okay. So, next, Albert. This is one of those pretender on the Supreme Court questions. Mr. Rossiter, I got the impression that you concurred by enlarging the result which is a decision that felt that and please correct me if I'm wrong, but thought that a lot of the reasoning you had in particular when it came to evidence and judicial notice in the first stage of the H&M talk had been sloppy. I don't know what was in your mouth, but it seems that way. How might you have gotten to that result with tighter evidentiary reasoning? And also, please give what you have on the set, if you want to have it here, there's lots of that as well. Okay. Just to restate the question is the reasoning process that the court used in AAB is, we've been talking a lot about judicial notice, how they arrived at the findings that they made. And the question is how might one get there with a more rigorous application of the law of evidence which you all really have to take if you haven't taken it off. That was a pain announcement. For evidence law. Look, I'll start where Michelle started a minute ago. I, too, credit you with a very good result for your client. And you're quite right. I don't mind the result. I don't mind that AAB's identity was protected in these circumstances. I mean, I'm in agreement with that result. Where I have discomfort is I felt that Dejanay and then Mentuk struck an appropriate balance between open course and freedom of expression on the one hand and publication ban relief on the other. And I felt that it struck that balance reasonably by requiring evidence and supportive emotion and I think what you had, and the reason I quoted the portions of the decisions of the Supreme Court of Nova Scotia and the Court of Appeals of Nova Scotia, the reason why I selected those particular quotes is that they just very practically indicated an ability to lead some evidence. And if you look specifically at what Jesse Sonner said, he wasn't requesting evidence of, which I agree with Michelle, it's quite unhelpful, he wasn't requesting evidence of what, of people crystal balling or gazing into the future. Evidence of, I think he used the word of a noticeable change in AAB, something that was observed by somebody that a judge could then use and say, that's a predictable response to that situation and I predict that that further public, based on that I predict that further publicity will cause your harm. I just thought Dejanay and Mentuk and the requirement for evidence achieved that balance. And when I read AAB, I didn't get the same sense in reading AAB that I did in reading Dejanay that there was a recognition that charter rights are protected equally and are to be balanced. And in fact, in December when I read the, sorry if I keep getting the initials wrong, the NS case, is anyone? I think that's right. The NS case, when I read that decision, there it was again, a good recognition by the Supreme Court that charter rights are to be, that no charter right comes another, that they're on an equal footing and that they're to be balanced when they're in conflict. Shall we go ahead on that? Yeah, I mean, I think if your question is, can you give the same result in a path that is a little more conventional? I was just imagining that. There's a very similar awkward situation in which three of you and six other people are sitting on court. You're writing a decision and you really like everyone to sign it. Yeah, yeah. Well, I think there was an opportunity for the court to build on the parent's patre jurisdiction that it has. It hasn't revisited that for a long time. You know, certainly this situation did not fall squarely within the analysis that existed the last time the court looked at it. But I think that jurisdiction is quite open and malleable and so it could have been used to get in through the path that Abela obviously wanted to be on. I think she was on the conventional path when there was the recognition of the inherent vulnerability of children and referring to the other places in law that that has occurred. And that would dovetail with parents' patre and it I think at the very basic level is to deal with vulnerable parts of people in society either individually or as a group. So I think those avenues were open and they're not the path that was taken to get to the result. Michelle, can I ask just as an observer or like a law geek interested with what happened at the hearing itself, was the record talked about in terms of how evidence supported where the parties wanted it to go? What kind of a dialogue? No, it was interesting actually because being sort of a everyday litigator I'm always focused on what does the old decision say and what does the order say. And I put it to the court at one point and I said, well no, you've got to look at the order and you can see them all kind of looking at me wondering if they even had it. And so we flipped to where it was because there was some talk about Bragg and the part that involved them that hadn't been appealed, it wasn't before them. So it felt procedurally like this was unusual that this report was more concerned about the concepts. But then to answer your question the concepts that they implicitly everyone seems to say relied on they weren't even front and center at all. It's a great experience. I'll tell you, if any of you got it it's a week before it's a nail biter but once you get there it's like, oh this is good, I'll do this again tomorrow. Okay, other questions? Can I just add a... It strikes me just as you were talking there Michelle that maybe it's quite a clever decision on Abela and the court's part in that it is brief and doesn't name the various cons. I mean that can go either way. But if she had said, well now we're doing judicial notice and let me do it in a way that doesn't fit. She didn't say that. She never said anything about judicial notice. So it's at least notionally open to a future case that well that case is not about judicial notice that we didn't talk about it there. That's something different. So in a sense her brevity and perhaps deliberate vagueness on points allowed her to get to a good result without being too caught up in the thicket that can be the law. And then may have been strategic. I would agree entirely because the idea of the Supreme Court I'm going to geek out again. The idea of the Supreme Court taking judicial notice has been really controversial because so often the stuff of which they take judicial notice didn't form part of the original evidentiary record. It comes in by way of the parties at the appeal and at the court by way of intervenors. So that's... It's almost a feeling there was a missed opportunity to get back into that. And that's because I'd like to see them talk about it. Maybe they don't want to talk about it. Anyway, enough from me. Tina. If I understand that the case is... What it does is shortcut the evidentiary requirement to get one of these publication grants on the applicants. But if I understand as well the bar is pretty low to begin with and the lower courts have basically said well you know you could have just fallen out of behavior like cyber-governing situation. I would think it'd be a matter of just getting you know one of the parents involved in the situation. The son and affidavit that says my daughter and my son is really upset by this overall it takes about 10 minutes to swear an affidavit like that. So with that shortcut or rather that obstacle out of the way what's the big win of the case not being to do that. Okay, so again for purposes of cyberspace the question is what is the big win from the case when if it was easy as Justice Saunders suggested it would be to file evidence of harm to the child then what have we actually won and perhaps we'll put that one to the winner first. Well if there is no harm you know none that has occurred in whatever period of time has resulted yet you know there's still been a wrong and the victim wants to pursue a remedy without having to re-suffer that wrong and I mean you know suffer using it loosely but you know be the subject matter of broader publicity concerning that wrong. So I think you know I hear you and the affidavits that are in play that I'm familiar with are you know not very difficult works of you know drafting so you know I think the win is for children that it's not about each of their individual reaction I mean I love this one it says you know the law attributes the heightened vulnerability based on chronology not temperament so you know one victim 15 cries you know is that enough or we got crying and refuses to go to school or crying refuses to go to school won't eat crying refuses to go to school needs psychological counseling like where on that spectrum is it enough and what this decision did and I think the win is it didn't require that subset of analysis that would eventually unfold you know the particular requirement for individual evidence remained. If I could just add it's really an extension of that same point I think the other is pointed out it's a class that are given the exemption not the individual and the sort of use the tort term the thin skull rule as you're just saying really doesn't apply so it doesn't matter whether the particular victim was not as troubled or was troubled and I think perhaps an equally important point which raises this access to justice point that I was beating on in my presentation is that I think without knowing this part of the audience for the Supreme Court decision was people thinking about pursuing a claim not just the claimants in front of them but if you're a victim of cyber bullying and you're trying to assess whether or not you want to pursue a civil action of defamation whatever it is what are the chances that you're going to have to give up your identity to do that and if in fact they have to prove it and produce half of David's and some win and some lose that's one calculation if the case says as it does I think you don't have to prove any of that if you're in the right age category and you've been victimized by cyber bullying you will get your anonymity so they say yeah well I'm going for it then I think in a way of Bella is quite explicit about saying this that she wants to not have the chilling effect for the real victims who then cannot and will not pursue their claims because they're further victimization so she takes all of that even if most of the time they win even if they lose occasionally that may make people say well I'm not going there it's not worth it to me to be re-victimized but she's settled that for the whole court saying as long as you have the age category at least bisexualized cyber bullying take the narrowest then you're home free I agree with everything Wayne said except that what he would characterize as the big win that would characterize as the big loss you're on the wrong side evidently to guess one John sure so I have a question I'll direct it to Professor McCann in the comments I get the sense that you're a fan of the elitist article at this notion of re-conceptualizing privacy and I'm also sympathetic to what she's attempting to do in the article although I'm a bit skeptical about some of her recommendations so for example this notion of re-conceptualizing privacy in my view and I've written this elsewhere it's been there's this rich and deep wealth of legal scholarship on privacy both in Canada and the United States which has re-conceived and re-conceptualized privacy so for so many contexts it's actually been sliced and diced for every bit and type of privacy that I think we've done enough on that point and in terms of linking privacy to human rights in this notion of dignity there's also body of sculpture that's been doing that it's been linked that way for a while and in fact if you look at it elitist sites the fact that typically discussions and common law jurisdictions about privacy you go back to the Warren and Brandeis famous article in the 19th century they actually link privacy to personality they actually explicitly talk about dignity in that context in my view I think before we go back to re-conceptualizing privacy we theorize ourselves in these spaces in the sense that we need to think critically about how technology is sort of altering us in our own behavior so that's a whole different set of theoretical questions and empirical questions so I was thinking given your work on the commission whether you found any hard empirical evidence that it's true and I know there's a lot of people make these claims about the net generation and the digital natives and that sort of thing I'm skeptical about these claims given the little bit of empirical evidence but I was wondering if you found that children are re-conceiving themselves in different ways in light of the technology that they're using in light of their time that they spend on the internet and whether you think that there's any useful avenues for more research and investigation and any thoughts on that you know is it more that this is just one provincial task force does it need to be a bigger inquiry does it need to be more empirical research maybe your thoughts on any of that would be welcome I'm looking forward to Rob's short summary of this I'm not answering this like slaying out excellent questions 40 seconds or less so my colleague Professor Penny has suggested that the view expressed in the ELFIS article Professor McKay was discussing earlier might be putting the carpet for the horse a little bit in the sense that we need to inquire into re-conceptualizing ourselves before we make the further step of re-conceptualizing and re-theorizing privacy law that was the first point the second point was a question to Professor McKay I'm not doing justice to Professor Penny's talk here but the second was a question to Professor McKay in terms of during the hearings that the cyber-rolling task force went for our young people as different do we need to re-conceptualize ourselves as beings entitled to privacy great reinterpret sir you did a great job let me start with the last point I guess and first of all I think you're right and as much as I like the ELFIS piece I think there's a few parts that didn't fit together that well in the sense she was being a little unfair to the kind of common law of perception and the way you said and I didn't fully understand to the extent she thought the civil law had the other and so there were a few loose ends of that kind but on the more important question I guess I would be first of all I'd be inclined to agree that the more interesting and in many ways more important question generally getting us outside the world of law is to what extent has technology and social media changed and that there was a fantastic kind of glimpse and not much more of that because this is all time limited and a few other things like teaching at the law school they tried to do at the same time but that that question is not fully answered and you're right there's a kind of a general assumption that there's digital natives and digital immigrants and that they're drastically different I think there's still a lot of similarities and one of the questions which I would be really interesting to explore empirically would be for example is there an age or generational difference and how important privacy is however we conceptualize it like you know my guess and it's nothing more than a guess would be that people of my generation or a few back even would have a greater attachment to privacy than younger people that given how they've grown up in the digital age and Facebook and tweeting and twittering and all these kinds of things which the young people had to educate us about on the task force that they aren't as concerned about sharing information and some of that's excellent not always as aware as they should be off the risks of doing that hence all the problems with cyberbullying and so on but at the core I'm not yet convinced I certainly haven't seen any evidence that they are fundamentally different that they really don't care at all about privacy and I kind of find that hard to believe like take an extreme case if you're a young more likely male who is constantly looking at pornography online you probably care whether that becomes public or not at least in certain contexts right whether you're adult or young or whatever you are or if you're doing something else and so it's easy to say they just aren't concerned about privacy anymore I don't think that's true and maybe this is going to your point it's really not just about redefining privacy because we don't actually solve world problems by legal concepts as much as we'd like to think so but rather you know thinking about you know what is the nature of the world out there I mean what you know what are people really what do they value and where does privacy fit in that and how significant is it and then equally important law trying to catch up with technology and social change I mean you know Rob and yourself and others there's people that are paying attention to the law and technology and how it's changed and everybody has to to some degree but I think my sense is we're still way behind in terms of legal concepts and legal ideas and the world in which we now live where social media and technology is a part of everyday life constantly so I haven't really fully answered but I guess to say I think there does need to be more study and there's a little bit on this I haven't read much of it and a really interesting question not just young people but at what extent are we different in the blackberry crackberry world you know to what extent are we different because we're attached to these machines and you know that we lost our attention spans have we become multi-taskers to the point that we can't focus what damage has been done to our brains I don't know but interesting questions we'll see what happens to rim over the next year or so whether we will be in a crackberry world any more maybe time for one or two more Alan didn't the corn control the privacy with the rate to panoramic that's think compatible with the reality of the internet the second part of that is is there danger in undercutting even slightly media rates for what is ironically described as a media driven moral panic okay question two well two not a two-park question but two questions the sorry can you restate the first one out my attention span is short in the afternoon concept of privacy yes the court and the court conflate privacy with anonymity here in terms of both the yeah the the ruling and its effects okay and the second question was is there danger in undercutting media rates or in the context of cyber bombing which could be seen as a flash in the pan sort of moral panic which is how it was described in the article okay are the protections on rights and freedom of expression being undercut by moral panic having to do with the ubiquity of the internet and attack on privacy and that sort of thing do you have a panelist you want to start with or throw it open I'll start on the first one you know I think the well the court didn't specifically say this anonymity order is for privacy reasons the the upshot of it is exactly that but you know I don't I'm looking over at David Fraser who's the privacy expert at our firm and whoever I have a privacy question or thought I go to but you know it just it didn't really come front and center I think it was kind of the underlying issue it was the result but it wasn't the path and it was kind of the unspoken concept that was kind of sitting out there but no one really addressed head on my interpretation of AB is that it is a privacy case that it was sought for the purpose of privacy there was there was a day which was relief sought for the purpose of fair trial rights there was where you had relief sought for the purpose of criminal justice rights or criminal justice interests the Sierra Club which is where relief was sought for the purpose of protecting commercial confidential commercial information and what you are missing and I suspect one of the reasons why the Supreme Court accepted this case for appeals what you are missing is that sort of the final Supreme Court authorities specifically you know on the specific specifically on privacy as a justification for a publication ban I don't know whether the word privacy was used specifically I guess I just assumed in reading it that was the purpose for the ban that was the counterveiling interest if I can put it that way so yeah I think I think the pursuit or the grant of anonymity is specifically to protect her privacy rights but more than that I hasten to add I mean our courts including our Supreme Court of Canada have consistently said that privacy alone will not justify a publication ban but privacy along with a risk of harm will justify a publication ban and so the reason why you didn't see too much discussion of privacy in this case I think is that it was assumed it was assumed as the purpose for the relief the case was really about the risk of harm so I see privacy as the method of preventing the harm right so yeah that's right that was that's right you needed anonymity in order to avoid what was claimed as the risk of harm I would agree with that but being a broken record here my access to justice point I would say that the real between the lines decision of the Bella and the Supreme Court is to protect the right of victimized people to have access to court and legal remedies privacy is the vehicle for that and the harm is the vehicle for that and at some point does kind of state that and she cites with approval the kids help phone and that's clearly the kids help phone factum and submission was very much on that so and sort of echoing something Michelle said earlier there's so many many interesting dimensions to this case but one of them is is always kind of the judicial method and what they're really trying to do here and on one level one can quite legitimately critique the sort of legal tidiness of what justice of Bella and the court did but or at another level you could say masterful attempt to get a good result and really stay focused on the ball this is really about victims of cyber bullying who are significantly a harm who if we decide the other way will not do legal remedies so that to me is ultimately it wasn't stated in that way and that what's one of the things that interested me about the altos piece was in a way it's open court versus not so much private but access to courts open in what sense open to the media open to the general public open to the most vulnerable victims who otherwise will not use that court and in some ways cleverly I guess I would give them the benefit of the doubt she kind of said that without looking at front and center because that would really depart from all of the sort of traditional language so to me privacy is the vehicle to access to courts and real legal remedies in this case does make me think of the conversation we had earlier in this question that's on the mind of long technology followers you know are we different because of the ubiquity of technology are our kids different do they think differently about privacy well I'm thinking Michelle's client doesn't think about privacy than anybody else what we see are the implications perhaps it's not that much different yet okay last question open the corner I think that's a yeah it's a studio observation again just to restate it that this isn't a departure from things that we've thought about in the past in terms of when situations in which we might want privacy sexual violence of any kind and the impact on that burst probably doesn't tell us a whole lot about what young people or what anybody think about privacy in other areas because this is such a core human cost kind of a situation so on that note I think it is time to wrap up but before we do I do want to have a law professor moment and just underscore how pleased I am that we are able to have here at the law school speakers of this quality of this kind of authority three nationally recognized practitioners in their various fields Michelle has made Lexpert top 30 under 30 and top 40 under 40 and she's still 39 as far as I know so looking forward in the next ten years Wayne McKay is a nationally and internationally recognized human rights scholar and award winning teacher Jim Rossiter is far too modest a man in terms of the authority of this wonderful book that he's written and that if you have a pen on it you should buy for certain and for us to be able to bring this kind of expertise to the school allows us to keep engaging with the real world impacts the real world effects of the law you know the allegations that law schools are in the ivory tower that we don't deal with the real world then you need an example of where we try to bring it all together this is so but we could not do it without the very valuable and precious time so I'm going to give our speakers gifts on behalf of the institute non-technological gifts that involve chocolate good on behalf of the school and the institute but before I do I hope you'll join me in thanking them