BarTalk June 2003
Volume 15, Number 3

by Shelley Bentley

The CBABC sponsors 72 Sections which play a vital role in keeping members informed both on changes in the law, and legal and political issues affecting a given area of practice. They are the main resource utilized by the CBABC in legislative review, law reform initiatives and in responding to matters affecting the profession. What follows is a sample of the recent activities of some Sections.

Legal Research
UBC Professor Emeritus Dr. A.J. McClean was asked by the Attorney General to make recommendations on the legislation governing Representation Agreements and Powers of Attorney. Professor McClean discussed his key recommendations during a recent Section meeting.

The old common law power of attorney was an instrument created with the narrow purpose of aiding commerce, covering financial matters of the donor while mentally incapacitated. Legislation expanded this power to extend beyond the subsequent mental incapacity of the donor but did not deal with the implications of this expanded power in a comprehensive manner. Although the Representation Agreement Act was enacted in 1993 to provide a more comprehensive approach in this area, it had its own problems. Representation agreements were, in part, intended to replace enduring powers of attorney by covering financial and personal matters such as health care. Dr. McClean noted that drafting decisions were based on assumptions without adequate empirical evidence.

In Dr. McClean’s review he found three considerations for which there was universal demand:

1. Freedom of Choice: People should have the maximum freedom to make arrangements in planning for incapacity;

2. Simplicity: Setting up the arrangement should be as simple as possible; and

3. Safeguards: Safeguards are needed to ensure the donor’s intent is carried out and to guard against abuse.

The process to create a power of attorney is simple, requiring, except in the case of dealings with land, only a written instrument and the donor’s signature witnessed by one witness. With the intention of avoiding abuse, legislative drafters created a much more complex process for making a representation agreement. While there is no Canadian empirical evidence available, in England the data suggests that despite elaborate precautions for the creation of such instruments, abuse is still extensive. Dr. McClean argued that such formalities increase the complexity and costs of preparing documents. As a result Dr. McClean recommended that powers of attorney be retained as the instrument to be used for arranging financial matters in the event of future incapacity. He recommended that representation agreements be limited to arranging personal affairs, such as health care, with the exception that the limited routine financial management powers in section 7 remain. He further recommended that the process involved in creating representation agreements be the same as that currently used for creating powers of attorney. He added that the duties of an attorney, such as the duty to act honestly and in good faith, should be set out in the Act and there should be a procedure allowing the attorney to apply to the court for advice and directions. More guidance should be given on how powers of attorney operate.

To date, the government has announced that enduring powers of attorney will be retained. It remains unclear which of Dr. McClean’s other recommendations will be adopted and when.

Computer Law
At a recent Section meeting, University of Ottawa Law Professor Michael Geist discussed cyberlaw trends over the past year. He noted that there has been a fundamental reversal in cyberlaw principles. Until recently the approach to cyberlaw has been guided by three underlying principles:

1. Borderless Internet and bordered laws: Articulated in John Perry Barlow’s 1996 Declaration of Independence of Cyberspace this principle holds that the government has no role in regulating online activity and the Internet has no borders.

2. Regulation of code: Originating from Lawrence Lessig’s book, Code, the idea is that online regulation comes from computer code, i.e., what technology allows, rather than from government.

3. Value and virtue of self-regulation: Government should not be involved in regulating online activity but rather industry and Internet users should regulate themselves.

Recently, Mr. Geist noted a trend towards a reversal of these principles:

Bordered Internet and borderless laws: Geographical borders are increasingly applied to the Internet. Geo-identification software can pinpoint an Internet user’s geographic location. Some Web sites are starting to limit access to users from certain locations. Also some States are starting to draft laws to apply beyond their borders. Examples of this are the U.S. Digital Millennium Copyright Act (DMCA), the Anti-Cybersquatting Consumer Protection Act, and the Children Online Privacy Protection Act. In a recent case, a Russian programmer wrote a program to allow users to break the encryption on certain Adobe products. When this programmer traveled to the U.S. he was arrested and charged under the DMCA. U.S. companies are starting to send DMCA notices to other countries warning their Internet service providers to remove infringing content.

Regulating code: Rather than letting computer code regulate the computer world, legislators are beginning to regulate the content of computer code. An example of this is the Hallings Bill in the U.S. It requires anti-copying technology to be embedded within certain devices.

End of self-regulation: There is a greater push by governments and portions of the private sector for more government involvement in various cyberlaw issues such as spam and other online consumer protection and privacy issues.

Freedom of Information & Privacy Law
Roger McConchie reviewed Campbell v. Mirror Newsgroup Newspapers Ltd., [2002] E. W. J. No. 4496 (English Court of Appeal) remarking that this decision may have long lasting ramifications in the development of a new cause of action for invasion of privacy.

The Court allowed the Mirror’s appeal of a decision in favour of model Naomi Campbell’s claim for damages for breach of confidence, invasion of privacy and breach of duty under the Data Protection Act 1998. The Mirror had published an article that revealed Ms. Campbell to be a drug addict and showed a photo of her leaving a Narcotics Anonymous meeting. Ms. Campbell had previously asserted to the media that she did not take drugs.

In identifying the principles by which the law of confidentiality and the importance of the freedom of expression must accommodate the Human Rights Act right to respect for private and family life, the Court of Appeal acknowledged that where a public figure chooses to make untrue pronouncements about his or her private life, the press will normally be entitled to put the record straight. The Court of Appeal has expressly approved, as a useful test of what information or conduct is private or confidential, whether disclosure or observation of the information or conduct would be highly offensive to a reasonable person of ordinary sensibilities. In approving the test, the Court of Appeal accepted that it embraced both the question of whether information was private and also the question of the degree of its significance but observed, “We do not consider that the test is any the worse for that.”

Shelley Bentley is in private practice at G Davies & Company.

This article originally appeared in the June 2003 issue of BarTalk and is reproduced here with permission of both the author and the Canadian Bar Association, British Columbia Branch.