Attack Ads, Copyright, and Collusion: Have Canada's Major Broadcasters Violated the Competition Act?

Canada's first (and the world's first) competition act: the Combines Act of 1889
Originally posted on Prof. Katz's blog

Last week reports emerged that the Government is considering a new copyright exception for political advertising. The reports suggested that the exception would permit the use of news content by political parties without authorization. While most of the media coverage of this story focused on the copyright issue and the phenomenon of attack ads, documents that Sun Media obtained from the CBC (under an Access to Information request) reveal an even more interesting and more important story, both politically and legally. These documents, offering a rare glimpse behind the scenes of Canada's major media organization, reveal a picture of a concerted action between the majority of Canada's news outlets, action that might run afoul the Competition Act. 

First jail sentence in Canada for foreign corrupt practices

Nazir Karigar, a former agent of an Ottawa high-tech company  was sentenced on May 23, 2014 to a penitentiary term of three years for conspiring to bribe several Indian government officials in the first Corruption of Foreign Public Officials Act (the “CFPOA” or the “Act”) case to go to trial. The conspiracy to bribe had as its purpose the winning of a tender for a multi-million dollar contract to sell facial recognition software to Air India, a state enterprise. Facial recognition software may play an important role in preventing the boarding of planes by unauthorized persons.

Sophisticated bribery schemes result in jail sentences

Superior Court Justice Hackland ruled that Karigar “had a leading role in a conspiracy to bribe Air India officials in what was undoubtedly a sophisticated scheme to win a tender for a Canadian based company.” The Court issues the following warning: “Any person who proposes to enter into a sophisticated scheme to bribe foreign public officials to promote the commercial or other interests of a Canadian business abroad must appreciate that they will face a significant sentence of incarceration in a federal penitentiary”.

European Medicines Agency's Proposed Data Release Policy: Promoting Pharma's Control Over Data

[Note: this Blog was originally written for and appeared as Guest Blog in PLoS' Blog "Speaking Of Medicine" (May 30, 2014) Reproduced here with permission]

Things were looking good recently in Europe for data transparency, a necessary, albeit not sufficient, tool to promote integrity of pharmaceutical data. The European Court’s Vice-President overturned in November 2013 two lower court interim suspensions of EMA’s data access decision in relation to Abbvie’s drug Humira and Intermune’s Esbriet, which had stalled EMA’s data release approach. Shortly after, Abbvie withdrew the Humira lawsuit. Then in April 2014, the European Parliament approved the new Clinical Trials Regulation that introduced a requirement to register all clinical trials and make all clinical study reports in relation to EMA approved drugs publicly available. These developments put EMA again in the driver’s seat for the further implementation of its promised prospective data release policy.

Understand The 'Law' Behind The Schoolgirl Kidnapping And Dare To Redefine It

By Anver Emon

This article was first posted on The Huffington Post on May 12, 2014.

Boko Haram, the group behind the horrific kidnapping of more than 300 schoolgirls in Nigeria, says its goal is to implement Islamic law - also known as Sharia. Meanwhile, in the small Southeast Asia nation of Brunei, the Sultan has declared Sharia law that calls for punishing adultery, abortions and same-sex relationships with flogging and stoning.

Both draw upon historical tradition that they believe reflects how things ought to be.

Boko Haram draws upon a legal tradition that permitted war captives (e.g. women and children) to be treated as slaves and sold as chattel. The legal context of this rule had to do with designating certain classes of people as protected in warfare, namely women, children and the elderly. Those who could not fight or posed no military threat were to be protected and not targeted in battle. But once the opponent was defeated, all that was theirs became part of the Muslim imperial coffers. Those who were protected in war subsequently became treated as the spoils of war, and thus relegated as slaves who could be sold. When Boko Haram, therefore, invokes Islamic legal rules to frame their abduction of schoolgirls and to justify their sale to others as wives, they are drawing upon a historical tradition about the economics of warfare and conquest.

Ten Cases that Changed the World

So what are the ten cases that have had the biggest impact, not just on the law, but on our collective life more generally?  The world is a big place so I am going to try to focus on cases that have had the greatest impact on our own lives which means that there will  be more focus on jurisdictions that we interact with most—thus not the legal world in its true sense.  But unlike many of the articles and materials I’ve looked at, I don’t want to only consider cases in our home legal system. 

I sat down to sketch a few ideas about the cases that seemed to stand out to me in terms of large scale impact.  Here are some preliminary thoughts:

Of course, I must include Donoghue v Stevenson—the case with the marauding gastropod which not only has intriguing facts but which also began the slow displacement of contractual obligations as the dominant means of organizing  relations, forcing contract to ‘share the field’ with more generalized duties of care.  The fallout continues….as Lord Buckmaster predicted.

Canada’s investment industry behemoths – aided by misguided regulators – are plotting to shut out upstart competitors to the detriment of investors

National Post, 21 May, 2014, p. F11

Canada’s investment industry behemoths – aided by misguided regulators – are plotting to shut out upstart competitors to the detriment of investors

In his magnum opus “The Wealth of Nations,” Adam Smith, the über mensch of competitive markets, famously opined that “people of the same trade seldom meet together, even for merriment and diversion, but the conversation ends in a conspiracy against the public, or in some contrivance to raise prices.” It turns out that Canada’s securities dealers have been doing quite a bit of partying lately. The remarkable thing is that, in their proposed amendments to the Canada’s securities market trading rules released last Friday, Canada’s securities regulators are supplying the beer and wine.

The core principal underlying today’s fragmented securities market, and the engine of competition and innovation, is the “order protection rule” (OPR). As the regulators’ report states, this rule ensures that the “best-priced displayed orders should generally be executed before inferior-priced orders.” The rule is advantageous for a host of reasons beyond merely giving investors the benefit of the best price possible.

Markingson Case Update: How an institution can transform a request for an ‘Independent Inquiry’ into another institutional procedural shield.

In an earlier blog of October 15, 2013, I reported on the controversy surrounding the death of Dan Markingson, a patient who participated in a controversial clinical trial of anti-psychotic medication, in a University of Minnesota hospital. (To get a sense of the wider concerns the case raises about clinical trial practices and human research protection, see the earlier blog, various links there, and recent blogs by Bill Gardner, Dale Hammerschmidt and Kirstin Borgerson). I was happy to report in a follow-up blog in December that a request for an independent inquiry, supported by more than 170 scholars in health law, research ethics, medicine and other relevant disciplines, and directed at the University of Minnesota Senate, appeared at first sight successful.

High frequency talker

"High frequency talker: Author of ‘Flash Boys’ has succeeded in demonizing an innovation that saves investors $9-billion a year"

Jeff MacIntosh, Special to Financial Post | April 14, 2014 7:51 PM ET
 

If high frequency traders are such bandits, why have so many gone out of business?

Michael Lewis’ book, “Flash Boys” – an ostensible indictment of high frequency traders (HFT) – has transformed Mr. Lewis into the undisputed heavyweight champion of the international talk show circuit. Media personalities around the world, including Canada’s own CBC, have been falling all over themselves to give Mr. Lewis a platform to carve up HFT in public. And, by-and-large, they have been uncritically swallowing his alarmist message that financial markets are “rigged.”

What a shame.

Perhaps the most important datum in this story is that alarmism sells. If Mr. Lewis had written a well-documented, impassioned defence of high frequency trading based on solid empirical evidence, his book would likely be well reviewed, sell a few thousand copies, and then quickly be forgotten. But who needs facts when you can get rich peddling soggy half-truths?

Access to Pharmaceutical Data, Not Data Secrecy, is an Essential Component of Human Rights

Recent media reports rightly point to Canada’s abysmal record when it comes to transparency of pharmaceutical data; this notwithstanding numerous calls and recommendations for urgent action, including in a 2012 Standing Senate Committee on Social Affairs, Science and Technology Report. A recent announcement by Health Canada that it was publishing a ‘summary report’ of data about the controversial acne pill Diane-35 (6 months after it announced it would do so) does little to reassure that we are really catching up with other countries.

Getting women on corporate boards: Canada's middling approach just might work

By Anita Anand

Published in the Globe and Mail on February 21, 2014

Board diversity is a hot topic in corporate Canada. With various European countries passing mandatory quota legislation to increase the number of women on boards and our federal and provincial governments calling for a balanced gender complement, regulators have faced increasing pressure to take a close look at the issue.

But recent evidence suggests that Canadian companies are already responding by voluntarily making changes around the boardroom table. Executive search firm Spencer Stuart has released a study indicating that Canadian companies may be surpassing their American counterparts in women’s representation on boards.

In 2011, the two countries were neck and neck, with 17 per cent women directors on the boards of Canada’s 100 largest companies and comparable U.S. firms. In 2013, Canadian companies were up to 20 per cent, while the U.S. percentage remained unchanged.

This is good news, but should not be confused with the overall picture. For example, of the 445 firms that responded to a recent consultation by the Ontario Securities Commission, nearly 60 per cent did not have a single woman director on their board.