The Canadian Privacy Law Blog: Developments in privacy law and writings of a Canadian privacy lawyer, containing information related to the Personal Information Protection and Electronic Documents Act (aka PIPEDA) and other Canadian and international laws.

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The author of this blog, David T.S. Fraser, is a Canadian privacy lawyer who practices with the firm of McInnes Cooper. He is the author of the Physicians' Privacy Manual. He has a national and international practice advising corporations and individuals on matters related to Canadian privacy laws.

For full contact information and a brief bio, please see David's profile.

Please note that I am only able to provide legal advice to clients. I am not able to provide free legal advice. Any unsolicited information sent to David Fraser cannot be considered to be solicitor-client privileged.

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The views expressed herein are solely the author's and should not be attributed to his employer or clients. Any postings on legal issues are provided as a public service, and do not constitute solicitation or provision of legal advice. The author makes no claims, promises or guarantees about the accuracy, completeness, or adequacy of the information contained herein or linked to. Nothing herein should be used as a substitute for the advice of competent counsel.

This web site is presented for informational purposes only. These materials do not constitute legal advice and do not create a solicitor-client relationship between you and David T.S. Fraser. If you are seeking specific advice related to Canadian privacy law or PIPEDA, contact the author, David T.S. Fraser.

Saturday, May 21, 2005

The new test for disclosure of identities after BMG v John Doe 

Michael Geist is the source for all information related to the recent CRIA file-sharing decision. If you want any information on the case, just go to

About the privacy aspects of the decision, Michael provides a summary written by Pippa Lawson:

"While I don't doubt that CRIA might come to court with some reliable evidence this time, this decision makes it clear that privacy matters. How clear? Pippa Lawson, CIPPIC's Executive Director, has compiled the following roadmap:

1. Plaintiff must show that it has 'a bona fide claim' against the proposed defendant, 'i.e., that they really do intend to bring an action based on the information they obtain, and that there is no other improper purpose for seeking the identity of these persons'. (para.34)

2. 'There should be clear evidence to the effect that the information cannot be obtained from another source such as the operators of the named websites.' (para.35)

3. 'The public interest in disclosure must outweigh the legitimate privacy concerns of the person sought to be identified if a disclosure order is made' (para.36) and '... caution must be exercised by the courts in ordering such disclosure, to make sure that privacy rights are invaded in the most minimal way' (para.42):

a) the information on which a request for identification is made (e.g., IP address) must be timely; no undue delay between investigation and motion for disclosure (para.43)

b) plaintiffs must not collect more personal information than necessary for the purpose of their claim (para.44)

c) if a disclosure order is granted, specific directions should be given as to the type of information disclosed and the manner in which it can be used. In addition, the court should consider making a confidentiality order or identifying the defendant by initials only (para.45)

** If either (a) or (b) are not met, the court may refuse to make a disclosure order."

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