The Power of Perspectives

The Canadian Bar Association

Yves Faguy


Regulating Facebook to make it an information fiduciary

By Yves Faguy April 12, 2018 12 April 2018

Regulating Facebook to make it an information fiduciary



If anything, Mark Zuckerberg’s testimony before Congress this week has succeeded in kicking off a debate about how to go about regulating companies like Facebook has begun, even though it is not entirely clear yet to lawmakers what, exactly, they think requires their intervention.

In fact, they seem more inclined to ask Facebook how it thinks it should be regulated, in large part because it’s dawning on everyone that Facebook’s business isn’t always easily described – some would call it a shape shifter. Which is a fair description when one considers it is at once a media company, a business that trades in personal data or a tech platform.

Ultimately though, what matters is that Facebook makes money off people’s personal data, and so the real issue is, how do we get companies like it to handle that data responsibly? Here’s one interesting suggestion from Jack M. Balkin who raises some interesting questions at the intersection of personal data use and artificial intelligence. He proposes that lawmakers ensure that online service providers become “information fiduciaries” vis-à-vis their customers, clients, and end users:

We provide lots of information about ourselves — some of it quite sensitive — to people and organizations who owe us fiduciary duties or duties of confidentiality. And when we provide this information, we have, and should have, a reasonable expectation that they will respect our privacy. We have a reasonable expectation that disclosing this information to them, or allowing them to collect it from us, is not the same as making the information available to the public generally. We have a reasonable expectation, in other words, that people and organizations who owe duties of trust and confidence to us will not betray us. Indeed, the law creates and recognizes relationships of trust and confidence precisely because it wants people to have reasonable expectations of privacy in certain relationships.

To some degree, the coming into force of the EU’s General Data Protection Regulation (GDPR) is a step in that direction by forcing companies through corporate data governance to more take better care of people’s data. Balkin, however, recognizes the inherent limits, however to this solution:

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Kinder Morgan: Legal questions and a business decision

By Yves Faguy April 11, 2018 11 April 2018

Kinder Morgan: Legal questions and a business decision

Three days after Kinder Morgan announced it is suspending "non-essential activities" spending on its Trans Mountain pipeline project, stakeholders – of the political variety at least – are still in a panic. Alberta Premier Rachel Notley has said her government would consider acquiring the pipeline in some form to ensure Alberta oil can be shipped overseas. BC Premier John Horgan is digging in, promising to continue in supporting legal action against the project. And the Trudeau government is drawing criticism for having not yet come up with a solution, as well as staying tight-lipped over a cabinet discussion about the issue yesterday.

Is there a legal solution?

None that is readily available.  Part of the issue here is that B.C. hasn’t actually done anything (yet), legally, to block the pipeline.  What’s more, pressuring the federal government to invoke 92.10 (c) of the Constitution Act, 1867 to declare that the pipeline is in the national interest is of limited value — given that most observers agree that it already falls under federal jurisdiction.  Complicating matters further, there is a Federal Court of Appeal ruling about to be rendered on a legal challenge launched by several First Nations and opponents of the project.  Kinder Morgan acknowledged as far back as May of last year that this could put an end to the project altogether.  A ruling upholding the Trudeau government’s approval of the pipeline project, it has been suggested, could give the B.C. government a face-saving way out of promise to legislate against it, but that won’t stop activists from applying political pressure.  Also, a reference to the Supreme Court of Canada for judicial review is one way to speed things up. But even then, it’s unlikely the top court could deliver a judgment in time before the May 31st deadline imposed by Kinder Morgan to end the uncertainty around the project.

Why it all matters

The question that should probably be discussed in a little more detail is the non-legal one. Is the Kinder Morgan pipeline at all economically viable in the long term? And is the company just looking for a convenient way to get out?


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The Pitch 2018

Getting to know The Pitch finalists: BidSettle

By Yves Faguy April 10, 2018 10 April 2018


As part of a weekly series leading up to The Pitch 2018, the legal innovation startup competition put on by the Canadian Bar Association and Law Made in partnership with LexisNexis, we’re publishing interviews with the five selected finalists to get to know them better.  This week’s Q&A is with Philippe Lacoursière (featured in the above video), co-founder of BidSettle, which offers a virtual legal platform dedicated to improving access to justice for regular people.

CBA National: What are the origins of BidSettle?

Philippe Lacoursière: So a few years ago I was talking with [co-founder] Alexander Desy over a beer. I love the law but was fed up about the way I was practising it and I saw how technology was changing other fields — in education for example. I wanted to figure out a way to bring technology into the law but in a way that would help people. Alex at the time was working for the Quebec Barreau studying the future of the profession and trends in Europe and in the United States. Together we came up with BidSettle.

N: Explain what BidSettle does

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CBA Futures

Legal futures round-up

By Yves Faguy April 10, 2018 10 April 2018

Legal futures round-up

Time for a round-up of notable trends and developments that highlight innovation in the legal industry.

Let’s start with the major news, last month, that legal services provider UnitedLex will partner exclusively with  GE to help the conglomerate optimize its legal functions.  According to The American Lawyer, “The UnitedLex partnership will save GE between $40 and $50 million and allow it to repurpose as many as 75 lawyers, with some of those transitioning to UnitedLex, according to one person familiar with the deal.”  The deal is significant, writes Steve Kovalan, because it shows how in-house legal departments will adapt to the businesses they serve – something presumably outside providers will have to get used to.

Meanwhile, a new survey produced by the Economist Intelligence Unit shows that frustration with high legal fees and demand for local regulatory knowledge has larger clients thinking of shifting their business from larger firms to cost-effective boutique law firms.

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A trade war that threatens the rule of law

By Yves Faguy April 5, 2018 5 April 2018

A trade war that threatens the rule of law

The Economist offers up some numbers:

According to the Peterson Institute for International Economics, a think-tank, America’s list covers Chinese products worth $46bn in 2017 (9% of that year’s total goods exports to America; see graphic). China’s covers American goods worth around $50bn in 2017 (38% of exports).

David Parkinson, while not dismissing the impact on traded goods, argues that there is a bigger story at play:

During this shoving match, many missed the moment when China crossed a meaningful line. China’s retaliation, while pretty small potatoes in terms of trade value, quite consciously skipped the WTO’s recognized process for adjudicating trade disputes. That is a troubling precedent – not just for the two countries embroiled in this squabble, but for the entire global trading order.

If the WTO as an institution embodies the rule of law in international trade, then its dispute-resolution mechanism is the justice system that enforces those laws. Without an agreed-upon system of enforcement, the rules become toothless very quickly. China, one of the WTO’s most important and powerful trading citizens, just went vigilante.

Reihan Salam expects that the two sides will likely pull back a little at first (and indeed the U.S. is already trying to dial things down) but he remains gloomy about the long-term prospects of the U.S.-China trade relationship:

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