Legal Feeds Blog
While class action lawsuits have become more common following a data breach, ashleymadison.com may not see its 37 million customers racing to put their name forward as members of a class.
|The hack of ashleymadison.com is ‘not your everyday data breach,’ says Catherine Beagan Flood.|
"This is not your everyday data breach."
The company's cheeky brand took a hit on Monday when it was hacked by a group that says it has private information about its users including names, photos, and credit card data.
While there has been a trend toward certification in class actions over data breaches, they haven't proven to be a very profitable venture for class action lawyers, says Barry Sookman, a senior partner and technology lawyer at McCarthy Tétrault LLP.
"Often, there are suits started, but it's really undetermined what the damages will be. This is an interesting case because the kind of mental distress that might be caused is directly associated with the fact there was a very high expectation that information would be confidential," says Sookman.
"If the information is disclosed, there will be a lot of distressing conversations that could end up also having financial losses. Consider what would happen if it precipitated 10,000 divorces of monetary settlements of $1 million each?"
The company declined a request for interview with Legal Feeds, but Toronto-based Avid Life Media Inc., which owns ashleymadison.com issued a statement apologizing to its customer base, saying it's offering the option to fully delete their personal information for free.
"We have always had the confidentiality of our customers' information foremost in our minds, and have had stringent security measures in place, including working with leading IT vendors from around the world," the statement said.
The statement went on to explain the company had secured its sites and closed the "unauthorized access points."
"Any and all parties responsible for this act of cyber–terrorism will be held responsible. Using the Digital Millennium Copyright Act (DMCA), our team has now successfully removed the posts related to this incident as well as all Personally Identifiable Information (PII) about our users published online."
The statement added that the paid-delete option offered by ashleymadison.com does remove all information related to a member's profile and communications activity. The process involves a hard delete of a requesting user's profile, including the removal of posted pictures and all messages sent to other system users' e-mail boxes.
"I expect they are making a careful assessment of the scope of what personal information has been taken by this hacker group and considering what information they can and should make public for purposes of their customers taking appropriate steps," says Beagan Flood.
The question for the company will be how best to notify its customer base without further breaching privacy.
"You need to make sure that giving notice doesn't make the situation worse and in many cases that can be by using a compromised security system, for example. This is a rather unusual situation in which any specifically targeted notice may only exacerbate a data breach," she says.
The cost of dealing with the breach will be high, says Sookman, in terms of legal fees and the brand.
"For a service like this in which people have an expectation of a higher level of security, the damage to the reputation might well be very difficult for them in the short term until consumer confidence is restored," he says.
"They will want to notify individuals if there actually has been disclosure but they probably won't want to notify 37 million people if their information has not been compromised," he says.
And given the 37 million customers include people from different countries, the company will have to comply with the mandatory disclosure laws in those jurisdictions and retain law firms there.
Even if a class action is launched, Beagan Flood says it's difficult in privacy cases to assess what the damages are, particularly where they're not financial in nature.
"This is one of the circumstances in which quantification of damages would be difficult," she says.
She says the Ashley Madison hack is an example of how identify theft and fraud aren't the only motivations for breaches of security safeguards.
"That means companies that may not have thought they were likely to be targets or thought putting significant safeguards on their financial data would be enough may need to rethink that because the rationale for the hack and type of information that is particularly sensitive isn't related to financial motivations," she says.
Howard Simkevitz of Simkevitz Law says if they aren't doing so already, companies will be paying more attention to data breaches and looking into insurance for cyber extortion.
"Data has become such a critical part to any business. The reality is you're going to have a data breach at some point. It's very difficult for an organization to go unscathed. You need to be prepared for that," he says.
While changes to the federal Personal Information Protection and Electronic Documents Act include the addition of data breach rules, they're not yet in force. They would require organizations give notice to the privacy commissioner and individuals affected and fines could be levied. Right now, only Alberta has mandatory breach notification.
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Winnipeg lawyer Sidney Green, a senior member of the Manitoba bar, doesn’t think he needs a course to teach him how to be persuasive.
|Manitoba lawyer Sidney Green says the law society should not require him to attend courses that are of no use to him.|
That’s one of the courses offered as part of mandatory continuing professional development for lawyers in his province, says Green, who has practised law for more than 60 years and was a bencher of the Law Society of Manitoba for eight years. After the Manitoba Court of Appeal dismissed Green’s application to declare that requirement illegal, he says he’s taking his fight against the Law Society of Manitoba to the country’s top court.
“I don’t believe I should attend programs which are of no value to me,” says Green. “I’ve been practising for over 60 years. I have never had a complaint against me by the law society, nor have I ever had a complaint of being incompetent.”
He adds: “If it’s useful for somebody, let them go. I have gone to these programs when they have been of value to me. I have not only gone to them, I have been a presenter. But I don’t believe I should attend when I believe they have no value to me or for the public.”
Green says he continues to attend programs he believes add to his knowledge. But the mandatory nature of the program, which requires lawyers to accumulate a certain number of points, is effectively forcing some lawyers to spend time and money on attending useless courses or risk having their licence suspended, he adds.
“Most of the lawyers that I know feel exactly the same way, but they’ll go to the programs in order to get points. They won’t listen to what’s being said or they won’t even stay. They’ll register just to get the required points,” says Green, adding he personally chose “not to make a mockery of their programs.”
When he fell short of his required credits, the law society sent him a suspension notice, but the suspension isn’t yet in effect while the matter is still before the courts. “The legislation does not specifically indicate a suspension of a lawyer who has never been found to be dishonourable and never found to be incompetent,” says Green.
“The suspension provisions in the act are for people who are incompetent or dishonourable.”
Manitoba lawyer Sidney Green says the law society should not require him to attend courses that are of no use to him.
But early this month, the Manitoba Court of Appeal found the law society has the power to make continuing professional development courses compulsory in order to remain a practising member of the bar.
“Having the power to make it mandatory, the law society clearly has the power under s. 65 to also make rules establishing the consequences — a suspension for failing to meet the requirement,” wrote Justice Marc Monnin on the court’s behalf. “A rule allowing the chief executive officer to suspend until the requirement is met is also within the law society’s powers as set out in the statute.”
Green’s lawyer, Charles Huband, says he'll seek leave to appeal the decision at the Supreme Court of Canada.
“We don’t think they were correct in the interpretation of the act. They took a general [rule-making] power and then said, ‘Well, that’s enough to make rules mandatory the attendance at classes and suspension for non-compliance,'” says Huband.
Huband says s. 4 of the act, "which simply says they can pass rules for the purposes of the law society," was never intended to mandate a situation where there are involuntary actions such as attendance at lectures with the consequence of a suspension for non-compliance.
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With an increasing number of lawyers experiencing depression, anxiety and addiction, coach and lawyer Joanne Schaefer, with the help of Young Women in Law, recently hosted a presentation to help the profession cope better with the challenges of mental illness. Anastasiya Jogal reports.
Trial judges must strike a “crucial balance” and give juries instructions that are complete while at the same time not overly complex, the Supreme Court of Canada ruled today while dismissing an appeal hinging on the curative proviso.
The unanimous ruling in R. v. Rodgerson concerned a Crown appeal to overturn a 2014 Ontario Court of Appeal ruling. In that ruling, the court found that the trial judge in the 2011 trial of Jason Rodgerson, which ended in a conviction for second-degree murder, had failed to properly instruct the jury about the way evidence produced in the trial could and couldn’t be used to prove intent to kill. In dismissing the Crown’s appeal today, the Supreme Court of Canada ruled Rodgerson was entitled to a new trial for second-degree murder.
Rodgerson was convicted of second-degree murder in the death of Amber Young, whom he met at a bar in Oshawa, Ont. At the trial, Rodgerson testified he and Young later had consensual sex in his apartment but that a dispute about money broke out shortly thereafter. Young attacked him with a knife, Rodgerson testified, and in the ensuing struggle Young died.
Following her death, Rodgerson buried Young’s body in his backyard and tried to conceal it and clean up the scene of her death.
Appealing his 2011 conviction, Rodgerson argued that the trial judge hadn’t properly instructed the jury on the ways that his conduct after Young’s death could and couldn’t be used to prove his intent to kill her, the decision states. The Court of Appeal agreed and ordered a new trial, but the Crown appealed that decision.
Today’s Supreme Court’s ruling hinged on the trial judge’s instructions to the jury on Rodgerson’s concealment of Young’s body and his cleaning up of the scene after her death. The trial judge, the decision states, “should have assisted the jury with a specific instruction on how to use this evidence on the issue of intent” since “these efforts [of concealing and cleaning up the crime] were also capable of supporting the further inference that R sought to conceal Y’s body and clean up the scene of her death in order to conceal the nature and extent of her injuries and the degree of force required to inflict them. This in turn could have been relevant on the issue of intent for murder: the more severe the injuries, and the more force required to inflict them, the stronger the inference that he intended to kill, or to cause bodily harm which he knew was likely to cause death.”
However, the decision states, “this chain of inferential reasoning was narrow, and the relevance of the evidence was attenuated,” necessitating very specific instructions from the trial judge on exactly how Rodgerson’s behaviour after the crime might or might not be used against him.
By failing to give those instructions, the trial judge “created a risk that the jury might convict R for murder based only on the broader inference that the concealment and cleanup pointed to a consciousness of guilt and a desire to prevent discovery of an unlawful killing,” not his intent to kill Young.
“After the jury rejected self defence, the issue of R’s intent was the central issue at trial,” the decision states. “Moreover, the Crown’s case was not overwhelming. As a result, the curative proviso does not apply and R is entitled to a new trial for second degree murder.”
Both the Crown and a dissenting Court of Appeal judge, the decision notes, had defended the trial judge’s instructions, arguing that “requiring a more specific instruction on the concealment and clean up evidence would further fuel the trend towards lengthier and more complex jury charges.” However, the decision states, only a few “modest alterations” would have been needed to properly instruct the jury, whereas “a great many of the instructions that were included could and should have been removed.
“A trial judge must strike a crucial balance by crafting a jury charge that is both comprehensive and comprehensible,” the decision states. “Over charging is just as incompatible with this duty as is under charging. . . . The fundamental purpose of the jury charge must be to educate, not complicate.”
“I am very gratified by the Supreme Court of Canada's decision,” says Rodgerson’s counsel, Christopher Hicks of Hicks Adams LLP, adding that the Crown, in initially seeking a first-degree murder conviction, had been incorrect in attempting to support that charge based on Rodgerson’s conduct after the offence. “I believe the Crown thought they could make new law in the area of post-offence conduct because of Rodgerson's many actions in a state of panic to conceal the death of the woman.”
Catriona Verner, also of Hicks Adams, who represented Rodgerson in his Court of Appeal case, says: “I am a little surprised that the [Supreme Court of Canada] did not take this opportunity to address the issue of the admissibility of post-offence conduct in homicide cases since that issue clearly continues to cause confusion. Instead, the decision focused solely on the need for guidance with respect to how to use post-offence conduct.
“In addition to addressing the specific issues before the Court, [Supreme Court of Canada] Justice [Michael] Moldaver took this opportunity to address the fact that jury charges are often unnecessarily long and confusing and he did a nice job of providing guidance on how to fix this problem. Hopefully, the advice will be taken to heart.”
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Far from mitigating violent crime, cultural beliefs leading to violence should, if anything, be an aggravating factor supporting a harsher sentence, the Ontario Court of Appeal ruled yesterday in striking down the inadequate sentence of a lower court.
The ruling in R. v. H.E. involves an Iranian immigrant convicted of raping his wife repeatedly and beating her along with his children. The assaults were routine, occurring three or four times a month, and the wife never thought to contact police because, according to her, such domestic abuse was common in Iran.
Indeed, the victim seemed shocked when it became clear to her that her husband could go to prison. Despite terrible abuse suffered over years, neither she nor her children wanted the man jailed.
The Crown sought a prison term of four years, but Justice William Gorewich of the Ontario Court of Justice handed down a much lighter sentence — 18 months plus probation — reasoning that there was no risk to reoffend and there were “no injuries” requiring medical attention.
Gorewich also took it upon himself to weigh cultural considerations despite the fact that none were offered as a defence: “In my considerations, I ask how much weight [should] the cultural impact of moving from Iran to Canada be given. [The accused’s wife] testified in Iran if she complained about any abuse she would be ignored. It is a different culture, it is a different society. As far as I’m able to ascertain from the evidence those cultural differences moved with them from Iran to Canada. It is only a factor in my deliberations, and not a sentencing principle.”
On appeal, Associate Chief Justice Alexandra Hoy, on behalf of a unanimous court, took great exception with the notion that one’s cultural background could excuse violent criminal behaviour. “Cultural differences do not excuse or mitigate criminal conduct. To hold otherwise undermines the equality of all individuals before and under the law, a crucial Charter value,” the decision states.
“All women in Canada are entitled to the same level of protection from abusers. The need to strongly denounce domestic violence is in no way diminished when that conduct is the product of cultural beliefs that render women acceptable targets of male violence. If anything, cultural beliefs may be an aggravating factor enhancing the need for specific deterrence in cases where the sentencing judge is satisfied that the offender continues to maintain those views at the time of sentencing.”
Hoy’s decision also cited errors with the lower court’s explanation that “no injuries” were suffered because medical attention was never sought. “The sentencing judge commented that medical attention was not sought. This does not mean there were no physical injuries.”
Finally, the appeal court found errors with the lower court’s assumption the accused posed no risk to reoffend. Much to the contrary, it found, the convicted man expressed no remorse for his actions and may continue to hold beliefs that his criminal behaviour was acceptable. “Given the lack of remorse, what then was the evidence that there was no risk to reoffend? . . . The respondent, in his late forties, was found guilty of routinely raping his wife over many years, and of physically attacking his own children. These offences were not isolated incidents. By nearly all accounts, the respondent had difficulty controlling his anger. This engaged an inference that the respondent was a risk to re-offend.”
The appeal court decision imposed a sentence of four years with no parole. Counsel for both the Crown and the respondent declined to comment on the decision.
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