'Tech-ing' Stock Of 2022 ' A Synopsis Of Key Developments In Canadian Technology Law

• Published date: 09 December 2022
• Subject Matter: Intellectual Property, Media, Telecoms, IT, Entertainment, Technology, Mobile & Cable Communications, Copyright, Fin Tech
• Law Firm: Aird & Berlis LLP
• Author: Sairam Sanathkumar

2022 has been bittersweet for many reasons. Corporate workforces trudged back into office buildings after hunkering down at home for more than two years. The COVID-19 pandemic does not feel like a permanent tenant in our lives anymore, despite lurking in the corner. The world is seeing vestiges of the "old normal," even as the "new normal" intermittently rears its head.

Stock markets tumbled as inflation soared. The Ukraine war rubbed salt on recovering economies' wounds. The technology industry, including Big Tech both north and south of the U.S.-Canada border, saw unprecedented massive layoffs. CEOs penned melancholic send-offs on social media to and for affected employees (a particularly lachrymose one posted a crying selfie, leaving netizens wondering the difference between affliction and affectation). In the high-stakes game of acquisitions in Big Tech as well, not everyone saved the drama for the llama.

In a year-end anti-climax, the world's fifth-largest cryptocurrency exchange, FTX, folded up like a Greek tragedy, grimly reminiscent of QuadrigaCX and Mt. Gox. Close on its heels, crypto platform BlockFi filed for bankruptcy in New Jersey, citing exposure to FTX as the chief reason for their collapse. But not all was calamitous in the crypto world, as we shall see later in this article. On September 15, Ethereum successfully transitioned from the mining-based proof-of-work to the more energy-efficient proof-of-stake consensus algorithm.

Was the metaverse the most reiterative word of the year in the inexorable march to Web3? Virtual offices, anyone?

As an eventful year draws to a close, we take stock of some of the key technology law developments from Parliament, the courts, and regulatory bodies in Canada.

Key Legislation

Digital Charter Implementation Act, 2022

Arguably Canada's most significant and sweeping piece of legislation this year, Bill C-27, the Digital Charter Implementation Act, 2022, tabled by the federal government on June 16, introduces three new acts, namely:

1. the Consumer Privacy Protection Act to replace Part 1 of the Personal Information Protection and Electronic Documents Actto govern protection of personal information in the private sector, while accounting for the need of organizations to collect, use and disclose such information in the course of their business;
2. the Personal Information and Data Protection Tribunal Act to establish an administrative tribunal to hear appeals of certain decisions made by the Privacy Commissioner of Canada under the Consumer Privacy Protection Act; and
3. the Artificial Intelligence and Data Act to regulate international and interprovincial trade and commerce in artificial intelligence systems.

Bill C-27 is a rebirth of Bill C-11, introduced in November 2020, which died on the order paper upon the announcement of the 2021 federal election. Bill C-27 is now at the second stage of reading.

Online Streaming Act

This year's Bill C-11, the Online Streaming Act, was introduced on February 2. Bill C-11 will amend Canada's Broadcasting Actby adding a distinct class of broadcasting undertakings called "online undertakings" for the transmission of content over the internet. Online undertakings include music streaming services like Spotify and Apple Music, video streaming services like Netflix and Disney+, and social media platforms like YouTube and Instagram. The Canadian Radio-television and Telecommunications Commission ("CRTC") will have broad regulatory powers over online undertakings, including the showcasing and discoverability of Canadian programs for Canadians and devoting programs to specific genres to ensure programming diversity.

Bill C-11 has been contentious on two main issues: first, the potential for regulating user-generated content, and second, privacy concerns with respect to the discoverability provision. The discoverability provision empowers the CRTC to make rules on presentation of programs and programming services for selection by the Canadian public. In his appearance before the Standing Senate Committee on Transport and Communications, the Privacy Commissioner of Canada, Philippe Dufresne noted that while Bill C-11 specifies that the CRTC cannot require the use of a specific computer algorithm or source code, "discoverability conditions could nonetheless potentially require the adaptation of existing algorithms that rely on personal information or the analysis of personal information to...