Professional & Knowledgable Law Team

Wednesday, February 25, 2015

'ਆਤਮ-ਹੱਤਿਆ ਦੀ ਕੋਸ਼ਿਸ਼ ਹੁਣ ਅਪਰਾਧ ਨਹੀਂ'

ਨਵੀਂ ਦਿੱਲੀ, 24 ਫਰਵਰੀ - ਸਰਕਾਰ ਨੇ ਕਾਨੂੰਨ ਕਮਿਸ਼ਨ ਦੇ ਸੁਝਾਅ ਨੂੰ ਸਵੀਕਾਰ ਕਰਦਿਆਂ ਇਹ ਫ਼ੈਸਲਾ ਲਿਆ ਹੈ ਕਿ ਆਤਮ-ਹੱਤਿਆ ਦੀ ਕੋਸ਼ਿਸ਼ ਹੁਣ ਅਪਰਾਧ ਨਹੀਂ ਹੋਵੇਗੀ,ਇਸਦੀ ਜਾਣਕਾਰੀ ਲੋਕ ਸਭਾ 'ਚ ਗ੍ਰਹਿ ਰਾਜ ਮੰਤਰੀ ਹਰੀਭਾਈ ਚੌਧਰੀ ਨੇ ਦਿੱਤੀ। ਉਨ੍ਹਾਂ ਦੱਸਿਆ ਕਿ ਭਾਰਤ ਦੇ ਕਾਨੂੰਨ ਕਮਿਸ਼ਨ ਨੇ ਆਪਣੀ 210ਵੀਂ ਰਿਪੋਰਟ 'ਚ ਕਿਹਾ ਕਿ ਆਈ ਪੀ ਸੀ ਧਾਰਾ ਸੈਕਸਨ 309 ਤਹਿਤ ਆਤਮ-ਹੱਤਿਆ ਦੀ ਕੋਸ਼ਿਸ਼ ਨੂੰ ਅਪਰਾਧ ਮੰਨਣਾ ਨੂੰ ਬਦਲਣ ਦੀ ਲੋੜ ਹੈ ਕਿਉਂਕਿ ਇਹ ਗੈਰ-ਮਨੁੱਖੀ ਹੈ ਭਾਵੇਂ ਇਹ ਸੰਵਿਧਾਨਕ ਹੋਵੇ ਜਾਂ ਗੈਰ-ਸੰਵਿਧਾਨਕ। ਗ੍ਰਹਿ ਮੰਤਰਾਲੇ ਨੇ ਭਾਰਤੀ ਕਾਨੂੰਨ ਕਮਿਸ਼ਨ ਦੇ ਸੁਝਾਅ ਨੂੰ ਮੰਨਦਿਆ ਇਕ ਨੋਟ ਜੋ ਆਈ.ਪੀ.ਸੀ.ਦੀ ਧਾਰਾ309 ਨੂੰ ਹਟਾਉਣ ਦਾ ਪ੍ਰਸਤਾਵ ਹੈ ਵਿਧਾਨਕ ਵਿਭਾਗ, ਕਾਨੂੰਨ ਤੇ ਨਿਆਂ ਮੰਤਰਾਲੇ ਨੂੰ ਸੋਧ ਬਿੱਲ ਦਾ ਖਰੜਾ ਤਿਆਰ ਕਰਨ ਲਈ ਭੇਜ ਦਿੱਤਾ ਹੈ।

Thursday, February 5, 2015

In Canada, Now police can search cellphones without warrant during arrest: Court

OTTAWA – A divided Supreme Court of Canada has ruled that police can conduct a limited search of suspect’s cellphone without getting a search warrant, but they must follow strict rules.
By a 4-3 margin, the court said in a precedent-setting ruling that the search must be directly related to the circumstances of a person's arrest and the police must keep detailed records of the search.
Three dissenting justices said the police must get a search warrant in all cases except in rare instances where there is a danger to the public or the police, or if evidence could be destroyed.
It is the first Supreme Court ruling on cellphone privacy, an issue that has spawned a series of divergent lower court rulings.
The high court dismissed the appeal of the 2009 armed robbery conviction of Kevin Fearon, who argued unsuccessfully that police violated his charter rights when they searched his cellphone without a warrant after he’d robbed a Toronto jewelry kiosk.
The court agreed that the police had in fact breached Fearon’s rights, but the evidence against him on his cellphone should not be excluded.
“The police simply did something that they believed on reasonable grounds to be lawful and were proven wrong, after the fact, by developments in the jurisprudence,” Justice Thomas Cromwell wrote for the majority.
“That is an honest mistake, reasonably made, not state misconduct that requires exclusion of evidence.”
Cromwell said the court was trying to strike a balance between the demands of effective law enforcement and the public’s right to be free of unreasonable searches and seizures under Section 8 of the Charter of Rights and Freedoms.
“In my view, we can achieve that balance with a rule that permits searches of cellphones incident to arrest, provided that the search – both what is searched and how it is searched – is strictly incidental to the arrest and that the police keep detailed notes of what has been searched and why.”
The ruling laid out detailed criteria to guide police.
The arrest must be lawful, and the search must be “truly incidental to the arrest” and “based on a valid law enforcement purpose,” it said.
The ruling defined valid law enforcement as: protecting the police, accused or the public.
That includes preserving evidence and discovering new evidence, “including locating additional suspects, in situations in which the investigation will be stymied or significantly hampered absent the ability to promptly search the cellphone incident to arrest.”
Moreover, the ruling said a phone can subjected to a warrantless search if the “nature and the extent of the search are tailored to the purpose of the search” if police “take detailed notes of what they examined on the device and how it was searched.”
That lack of proper note-taking was the one flaw the high court identified in Fearon’s arrest, but it said that wasn’t enough to exclude the evidence that was gathered from his phone.
After police arrested Fearon, they found a relevant draft text message that referred to “jewelry” and photographs, including the handgun used the robbery.
“We did it,” the text message read in part.
Police later obtained a search warrant but found nothing more useful on the phone.
The court said the evidence the officers presented in court about the initial search was unsatisfactory. One officer testified that he “had a look through the cellphone” and another said he did “some quick checks” for about two minutes.
Beyond that, the court concluded, the police “were not able to provide many specifics.”
Still, the high court allowed that evidence to stand – upholding Fearon’s conviction – and agreed with the original trial judge’s finding that excluding it would “would undermine the truth-seeking function of the justice system.”
Writing for the three dissenters, Justice Andromache Karakatsanis said police should need a warrant in all cases to search a cellphone.
“The intensely personal and uniquely pervasive sphere of privacy in our personal computers requires protection that is clear, practical and effective,” she wrote.
She added the court’s majority ruling had proposed an “overly complicated template” for police to follow.
“Fundamentally, my colleague’s approach puts the balancing decision in the hands of the police,” Karakatsanis wrote.
“I doubt not that police officers faced with this decision would act in good faith, but I do not think that they are in the best position to determine ‘with great circumspection’ whether the law enforcement objectives clearly outweigh the potentially significant intrusion on privacy in the search of a personal cellphone or computer,” she added.
“If they are wrong, the subsequent exclusion of the evidence will not remedy the initial privacy violation.”

Weblinks

ਦੂਜੇ ਸਨਿਚਰਵਾਰ ਦੀ ਛੁੱਟੀ ਰੱਦ ਕਰਕੇ ਲੋਕ ਅਦਾਲਤਾਂ ਲਗਾਉਣ ਦੇ ਹੁਕਮਾਂ ਖਿਲਾਫ਼ ਵਕੀਲਾਂ ਵੱਲੋਂ ਹੜਤਾਲ

ਸੰਗਰੂਰ, 4 ਫਰਵਰੀ - ਪੰਜਾਬ ਅਤੇ ਹਰਿਆਣਾ ਹਾਈਕੋਰਟ ਵੱਲੋਂ ਪੰਜਾਬ ਦੀਆਂ ਅਦਾਲਤਾਂ ਵਿਚ ਮਹੀਨੇ ਦੇ ਦੂਜੇ ਸਨਿੱਚਰਵਾਰ ਦੀ ਛੁੱਟੀ ਰੱਦ ਕਰ ਕੇ ਲੋਕ ਅਦਾਲਤਾਂ ਲਗਾਉਣ ਦੀ ਨਿੰਦਾ ਕਰਦਿਆਂ ਅੱਜ ਜ਼ਿਲ੍ਹਾ ਬਾਰ ਸੰਗਰੂਰ ਦੇ ਵਕੀਲਾਂ ਨੇ ਮੁਕੰਮਲ ਹੜਤਾਲ ਕੀਤੀ | ਜ਼ਿਲ੍ਹਾ ਬਾਰ ਸੰਗਰੂਰ ਦੇ ਪ੍ਰਧਾਨ ਸ੍ਰੀ ਹਰਪਾਲ ਸਿੰਘ ਚੀਮਾ ਨੇ ਦੱਸਿਆ ਕਿ ਪਹਿਲਾਂ ਅਦਾਲਤਾਂ ਦਾ ਕੰਮ ਦਾ ਸਮਾਂ ਵਧਾ ਕੇ ਮਹੀਨੇ ਦੇ ਦੂਜੇ ਅਤੇ ਚੌਥੇ ਸਨਿੱਚਰਵਾਰ ਦੀ ਛੁੱਟੀ ਚੱਲ ਰਹੀ ਹੈ ਪਰ ਹੁਣ ਹਾਈਕੋਰਟ ਵੱਲੋਂ ਆਏ ਹੁਕਮਾਂ ਮੁਤਾਬਿਕ ਦੂਜੇ ਸਨੀਵਾਰ ਦੀ ਛੁੱਟੀ ਰੱਦ ਕਰ ਕੇ ਇਸ ਦਿਨ ਲੋਕ ਅਦਾਲਤਾਂ ਲਾਉਣ ਬਾਰੇ ਕਿਹਾ ਗਿਆ ਹੈ ਜਿਸ ਦੀ ਵਕੀਲ ਭਾਈਚਾਰਾ ਪੁਰਜੋਰ ਨਿੰਦਾ ਕਰਦਾ ਹੈ | ਸ੍ਰੀ ਚੀਮਾ ਨੇ ਕਿਹਾ ਕਿ ਉਹ ਲੋਕ ਅਦਾਲਤਾਂ ਦਾ ਵਿਰੋਧ ਨਹੀਂ ਕਰਦੇ ਪਰ ਲੋਕ ਅਦਾਲਤ ਲਈ ਦੂਜੇ ਸ਼ਨੀਵਾਰ ਦੀ ਛੁੱਟੀ ਰੱਦ ਨਾ ਕੀਤੀ ਜਾਵੇ ਸਗੋਂ ਲੋਕ ਅਦਾਲਤ ਹੋਰ ਕਿਸੇ ਦਿਨ ਲਗਾਈ ਜਾਵੇ | ਜੇਕਰ ਦੂਜੇ ਸ਼ਨੀਵਾਰ ਲੋਕ ਅਦਾਲਤਾਂ ਲਗਾਈਆਂ ਜਾਂਦੀਆਂ ਹਨ ਤਾਂ ਜ਼ਿਲ੍ਹਾ ਬਾਰ ਇਸ ਦਾ ਮੁਕੰਮਲ ਬਾਈਕਾਟ ਕਰੇਗੀ | ਇਸ ਮੌਕੇ ਹੋਰ ਵਕੀਲ ਭਾਈਚਾਰਾ ਮੌਜੂਦ ਸੀ |

Thursday, January 22, 2015

India may legalise sex tests to check foeticide: Union Minister

New Delhi: In what may have far-reaching effects, sex determination tests may be legalized for eradicating female foeticide. Union Minister for Women and Child Development Maneka Gandhi stated this while speaking at the concluding session of the two-day national thematic workshop on women and child development here today.
The workshop was held ahead of the launch of the ambitious “Beti Bachao, Beti Padhao programme” by Prime Minister Narendra Modi here tomorrow.
Maneka responded positively to the suggestion of Maharashtra Women and Child Development Minister Pankaja Munde making sex determination tests mandatory as it will help in checking female foeticide. She said she would consider and give it a practical shape.
Maneka said, “Instead of harassing gynaecologists, if we could somehow make it legal, it would be more sensible in checking female foeticide.”
Earlier, Pankaja Munde suggested that sex determination tests should be made mandatory as it would be easy to keep an eye on women and in case of abortion for getting rid of a female child, they should be punished.
Currently, sex determination tests are illegal under the PNDT Act. Several doctors across the country have been booked under this Act for determining sex of the unborn during pregnancy.
“Women development might get a boost if 33 per cent reservation for women in police is ensured and if national commission for women is given judicial powers. I have made these two demands after becoming a minister and these are still pending”, Maneka said.
Earlier, experts spoke on a number of topics, including violence against women, nutrition and health, improving child sex ratio and importance of girl child.
Haryana Women and Child Development Minister Kavita Jain, her Rajasthan and MP counterparts Anita Baghel and Maya Singh, respectively, also expressed their views.
National Commission for Women Lalita Kumaramanglam said women themselves were responsible for their plight and men could not be squarely blamed for this.
"We need to educate girls and impart them skills. Most importantly, it is in our hands to empower women," she said, adding that the BJP government would pass the Women's Reservation Bill even if it does not happen in the budget session beginning next month.

Dual Citizenship India? - OCI

The constitution of India does not allow Indian citizenship and citizenship of a foreign country at the same time. India does not offer dual citizenship. Many  nonresident Indians were left with the impression during the last two years that the government of India had decided to grant dual citizenship. Instead of Dual  citizenship, India offers a lifelong visa and has cleverly called it Overseas Citizen of India (OCI). Many Indians are confusing this with dual citizenship. 

Those applicants who are granted OCI receive a lifelong multiple entry visa stamp on their foreign passports and a registration booklet that looks like a  passport but cannot be used as a travel document. Holders of OCI must travel using their foreign passports.

Benefits allowed to OCI:        
•Multi-purpose, multiple entries, lifelong visa for visiting India.
•Exemption from registration with local police authority for any length of stay in India.
•Parity with NRIs in respect of economic, financial and education fields, except in matters relating to the acquisition of agricultural/plantation properties.•Parity with non-resident Indians on inter-country adoption
•Parity with resident Indian nationals in domestic airfares
•Parity with Indian nationals in entry fees for national parks and wildlife sanctuaries.
•Pursuing professions in India in pursuance of the provisions contained in the relevant act.
Professions such as: Doctors, Dentists, Nurses, Pharmacists, Advocates, Architects, Chartered Accountants

Those who get OCI should realize that:
1.They do not get an Indian passport. The passport type of document issued to OCI recipients is NOT a valid passport and cannot be used for travel.
2.Have no right to vote in India.
3.Cannot run for political office.
4.Cannot be appointed as a high court/supreme court judge

Purchase of Agricultural land in India:
Another myth is that OCI holders can buy agricultural land. OCI holders simply by getting OCI are not entitled to purchase agricultural land in India. OCI holders, permanently living in India also come under the same rules as other residents. Many people are not aware that in some Indian States, even Indian citizens cannot buy agricultural land unless they qualify themselves as farmers or go through several other formalities. 

Many Indians do end up buying agricultural lands by getting the land use changed. This is quite common for agricultural lands that are on main roads or near roads. As construction spreads to the outer areas of cities, the price of agricultural land bordering roads is shooting up, especially if the land use can be successfully changed from agricultural to commercial.

The main benefit of OCI is a lifelong visa. Holders of OCI also are exempt from registering with the police regardless of the duration of stay in India.

VOTING RIGHTS FOR NRIS?
Some news reports indicate that the government of India is presently considering allowing Non Resident Indians to vote. This has led many residents of Indian descent, who are presently settled abroad to think that one day they may be allowed to vote in India.

Some former Indian citizens who are presently settled abroad and have acquired citizenships of the countries they are living in, have a misconception that they are still non-resident Indians. Some of these people still believe that they would still be classified as non resident Indians and perhaps allowed to vote if NRI’s getting voting rights in the future.  Those Indians who have taken foreign citizenship will not be eligible to vote as they would be considered as foreign citizens.

Update: NRIs residing abroad can now vote in Indian elections. They can register as voters at the nearest Indian consulate. Contact the Indian consulate serving your area of residence for more information. 

Comparing OCI with PIO card. Persons of Indian origin who have acquired foreign citizenship are eligible to apply for a PIO Card or an OCI card. The PIO card scheme was launched earlier than the OCI card scheme and those who already hold PIO cards, can opt to apply for OCI at a reduced fee. There are some minor differences in the eligibility, procedure, cost and the benefits/restrictions between OCI and PIO card. Listed here are some of the differences between PIO and OCI so as to make it easier to compare PIO and OCI status.
*Source: http://mha.nic.in/pdfs/oci-chart.pdf

Wednesday, January 21, 2015

What has ten years of RTI achieved?

The biggest lesson of the last 10 years since the Right to Information Act came into force is that Indian democracy, if it has to be meaningful, has to have a strong, effective RTI regime. That regime has to be equally owned by those who govern and those who are governed.

TEN years after the Right to Information Act promised the country a “practical regime of right to information for citizens”, what have we gained as citizens? Has it helped to usher in required "transparency and accountability" in the working of every public authority? That this promise was at all made by a power elite notoriously resistant to scrutiny was itself an achievement requiring the concerted efforts of remarkable social activists and a few good men and women in the bureaucracy. But 10 years later that promise has still remained largely that — a promise.
That the Government of India has as yet not deemed it fit to appoint a Chief Information Officer five months after the last one retired underlines one of the myriad ways in which that promise could falter.
For the Government of India, the Right to Information Act has been, in G.M. Young's immortal words, rather like being married to a duchess: the honour is almost greater than the pleasure. If those in power have worn the accountability law like a badge of their supposed “good governance”, it is also true they have fought hard to undermine it in every way possible. 
In fact, as soon as the Act was passed by the UPA government in 2005 in the first blush of its return to power after almost a decade in the wilderness, every important government institution had sought exemption from its purview on the grounds of protecting official secrets in the national interest. The bureaucracy which, from the days of the British Raj had thrived on opaque government functioning also demanded that file notings not be made public, once again in supposed “national interest”.  
Some five years later the government put forward the suggestion that the Act be amended to “discourage frivolous and vexatious representations”. At each juncture, it was the swift response from civil society actors that helped to stymie the concerted effort to re-introduce a veil of secrecy over government decision. 
In 2013, when the Chief Information Commissioner took the important initiative to bring all national political parties under the Act's purview, political interests across the spectrum swiftly came together and an amendment to the Act was framed to counter it. Clearly, because access to information can potentially shake up the status quo, those in power whether under the UPA or under the NDA; whether a Manmohan Singh or a Narendra Modi, tend to be extremely wary of it. During his election campaign for the 2014 general election, the latter had mockingly asked an election crowd, “Has the RTI given you something for your stomach?”
There is, of course, much to criticise about how the Act has been enforced. In 2013, the RTI Assessment and Advocacy Group along with Samya-Centre for Equity Studies recently reviewed its impact from 2011-2013 in a study entitled, “People's Monitoring of the RTI Regime in India”. Many important trends emerged from this exercise, including the formidable backlog in clearing applications that exists. The review estimated that it would take a state like Madhya Pradesh 60 years to clear applications filed today and while West Bengal may be tad more efficient in this regard, it would still take 17 years before a petition filed in the state is attended to. In terms of providing information promptly, Delhi did at least twice better than Bihar. We know how court cases moved at a glacial pace, and it seems that RTI petitions were heading in the same direction. The primary reason for this is a lack of personnel. If the judicial backlog has been in large part created by the sorry shortage of judges, the lack of a sufficient number of information commissioners was the single biggest reason for the unconscionable delay in processing RTI applications.
Who were the people filing these applications? What were their compulsions? These were just among the more intriguing questions the review set out to answer and the data was revealing. It found that women applicants, for instance, were insignificant in number, constituting just 8 per cent of the total applicants. Equally striking was the fact that although two-thirds of India's population lives in villages, only 14 per cent of applicants were rural. Ironically, the lack of information about the right to information seems to lie at the heart of this and the authors of the review observed that the authorities have not taken enough pains to raise general awareness about this right. 
While redressal of personal grievance was a significant motivation for the filing of RTI complaints, a fair proportion of inquiries were linked to issues of public interest, whether they concerned the actions of public authorities or the use of public resources. This, of course, was highly contentious terrain. Over these 10 years, many information activists have faced harassment, assaults and death threats. In May 2008, there was the shocking case of Lalit Mehta. He was killed for exposing corruption in rural job guarantee projects in Palamu, Jharkhand, and his killers have eluded justice to date. The CBI has just launched a fresh probe into the case involving Satish Shetty, who was hacked to death after unearthing a major land-grab scam and alerting the police in Lonavala, Maharashtra about it. Mehta and Shetty are just two among several others who have paid with their lives for exposing unscrupulous and powerful elements through the seemingly innocuous pursuit of information. 
Here is evidence of governmental apathy in putting together an effective protective regime for RTI activists. The Whistleblowers Protection Act, 2011, was passed in early 2014 but the rules are yet to be framed, so it has not been operationalised. As the authors of the review underlined, what was urgently required was to treat all forms of intimidation against RTI activists, once proven, as punishable offences under criminal law.
The biggest lesson of the last 10 years since the Act came into force is that Indian democracy, if it is to be meaningful, has to have a strong, effective RTI regime that is equally owned by those who govern and those who are governed. If public authorities “maintain all records duly catalogued and indexed” and provide “as much information suo motu to the public at regular intervals”, as is required under the RTI Act, perhaps the need to file applications for information will decline. 
A recent move by the government to make available online all the replies provided by various ministries is a step in the right direction. How about mainstreaming another good suggestion: Setting up a national task force that is mandated to scan all government records and make them available to the public through a searchable data base?
The writer is a senior fellow with the Indian Council of Social Science Research.

Court doubts will, orders relief for NRI woman

Chandigarh, January 20
While an 80-year-old woman was on the deathbed and not in a fit mental and physical state of mind, her grandsons and residents of Sector 15 allegedly set up a will disclaiming the NRI daughter of the woman (their aunt) of any share in the possession of the house in 2008. In a scathing order pronouncing the "genuineness of the will as doubtful," the court of Civil Judge (Junior Division) Pamelpreet Grewal raised a serious doubt that the 80-year-old woman, Joginder Kaur, who was suffering from mental disorder and acute psychosis and was not in a fit state of mind, could have ‘executed’ a will a day prior to her death. While providing relief to the NRI woman, who moved the court alleging that her share in a Sector 15-based house was forcibly taken by her brother in favour of his sons, the court today stated that there was a serious and genuine doubt regarding the mental condition of the testator to execute the will, particularly in view of the fact that she was suffering from a mental disorder as serious as dementia and psychosis.
A USA-based NRI woman, Tejinder Kaur Chadha, who is the wife of a retired Colonel and cancer patient, got a major relief from the court today with the court declaring a will put up by the woman's brother claiming that his sister had no share in the house owned by their mother, as not believable.
The petitioner’s brother, Harpal Singh's two sons -- Rupinder Singh and Manvinder Singh -- produced a will in 2008 and had claimed that their father's NRI sister Tejinder Kaur Chadha had no share in respect of the property left by their grandmother.
The court today entitled Chadha her share of one-fourth of the 20 per cent share of the house as inherited equally by Joginder Kaur's naturally legal heirs. The suit was filed by Tejinder Kaur through advocate Thakur Kartar Singh.
Tejinder Kaur alleged that her share in the house was wrongfully taken by her brother Harpal Singh in favour of his two sons who had forged a will January 11, 2008, by their mother Joginder Kaur, who passed away on January 12, 2008.
While the brothers showed the will to be executed by their grandmother a day prior to her death, the will also had a thumb expression instead of a signature. “No other document has been placed on record to prove this and thus this version of putting a thumb expression instead of the signatures on the will does not inspire the confidence of the court,” stated the judgment. The original of the will was also not produced on record.
Multiple organ disease
A defence witness has admitted that Joginder Kaur was suffering from multiple organ disease, which included kidney, liver, bones, electrolyte imbalance and psychotic disorder and dementia. At the time she was admitted to the hospital on January 11, she was diagnosed with anaemia, hyponatremia, septicemia and septic shock. "Suspicious circumstances regarding the thumb impressions, mental and physical state of the testator, the will being executed one day prior to her death from prolonged illness and non- production of the original will have crated a doubt regarding the genuineness of the will," said the court, entitling Chadha to get her one-fourth share of the 20 per cent share of Joginder Kaur in the house in Sector 15-A

Monday, January 12, 2015

Punjab Govt files plea in SC on release of Sikh de...

Punjab News Weekly: Punjab Govt files plea in SC on release of Sikh de...: Chandigarh, January 10 The Punjab Government has filed an application in the Supreme Court seeking permission to consider and decide appl...

Saturday, January 3, 2015

New regulations about illegal downloading go into effect in Canada on Jan. 2, 2015

Canada's new online copyright protection regulations allow holders to restrict downloaders


If you’re downloading files illegally in Canada on Jan. 2, 2015 you might be getting a notice from your Internet service provider (ISP) asking you to stop. So what’s new and how effective will these notices be in preventing piracy?

But that’s all – the notices are not the first stages of a lawsuit and you won’t go to jail. So what’s new and how effective will these notices be in preventing piracy?

The Jan. 2 rules just codify what ISPs have generally been doing the last ten years: they require providers like Rogers and Bell to send a letter, technically called a “Notice and Notice,” to the person connected to the IP address asking them to stop if they’re thought to be partaking in copyright infringement.

Your ISP isn’t going out of its way to track what you download though. Instead, it’s only required to forward notices it’s received from copyright owners.

And the notices can only ask you to stop—though there is some worry that copyright owners might try to sneak in demands for payment.

“If you pay us $3,000 by such and such a date, we will not sue you,” is one possible tactic, copyright lawyer Howard Knopf said during an interview. “The law was not intended to work that way and what people will not realize is that there’s no judicial process involved in that. And in the absence of a successful lawsuit, they’re not under any obligation to pay anything.”

Some ISPs have already sent the notices. According to a presentation by University of Ottawa professor Michael Geist, only five per cent of Rogers subscribers received a notice in 2011. Of those people, 68 per cent received a single notice; 89 per cent received two notices, and 1 in 800,000 received numerous notices.

And they seemed to work: Rogers told a House of Commons committee in 2011 that67 per cent of people who received a notice didn’t reoffend.

“People tend to take down what is offending, if it’s illegal, and tend not to repeat their behaviour. So it’s a very effective way of educating people to not infringe copyright,” Knopf, counsel at Ottawa law firm Macera & Jarzyna said.
But that doesn’t mean you can get away with downloading your favourite movie illegally. Copyright holders are still able to take people to court; but the case would be civil, not criminal, according to John Cotter, a lawyer with Osler law.

“In terms of rights and remedies, the copyright owner has what they’ve always had,” Cotter said. “So that if the recipient of the notice doesn’t take down the content in question, they have the same exposure they’ve always had to liability.”

Cotter said damages for copyright infringement can range between $500 and $20,000 for commercial activity.

And it’s far different than the United States where people have been ordered to pay millions. In 2009, Jammie Thomas-Rasset, a 32-year-old woman from Minnesota, was ordered to pay $1.9 million for downloading 24 songs.

“The cap is going to be $5,000 (for non-commercial activity), so nobody is going to lose their house over this,” Knopf said.
“But not only that, it’s a cap of $5,000 for that particular behaviour and all previous infringing behaviour against the works of all other copyright owners.”

Identifying the “pirate” can be difficult: The copyright holder has to bring evidence of copyright infringement before a court and ask the names associated with it be disclosed.

The ISP has to keep records of the notice for six months or up to a year if the issue goes to court within the first six months.  But they don’t have to give up the name of the person issued a notice unless there’s been a court order. And that can be difficult for the copyright holder to get.

There have been two notable cases in Canada where a copyright holder has tried to obtain names from an ISP—one was unsuccessful, the other is still before a judge.

In 2004, BMG Canada asked a court to order the disclosure of account information associated with 29 IP addresses believed to be involved with downloading 1,000 copyrighted music files from peer-to-peer sharing software. They were denied.

More recently, Voltage Pictures, the production company responsible for The Hurt Locker, took Teksavvy to court to try and obtain the names of people accused of downloading some of their content including Dallas Buyers Club. In this case, the court said they would order the disclosure of names provided Voltage Pictures pay the “reasonable costs” of finding the names associated with the IP addresses – a cost which the ISP has pegged at $346,480.68. Voltage Pictures suggested it should pay no more than $884.

IP addresses aren’t exact either – they’re like a license plate. They can provide information about who owns the car, but not who is driving.

The bill does have some detractors: The Canadian Independent Music Association, which represents independent artists, panned the bill in a written statement for not having a “take-down provision” which would force the illegal content off the Internet.

“The ‘notice‐and‐notice’ provision puts an unreasonable burden on copyright owners and creators to self‐police infringements ‐‐ while essentially allowing ISPs once notified of an infringement, to have no further involvement and thereby creating the untenable situation whereby infringements will continue.”

Canada’s new anti-piracy laws that went into effect this week, giving copyright holders an avenue to confront illegal downloaders. It is unlikely, however, that piracy will end overnight.
The U.S. and Britain currently have similar laws, or stronger ones, in place and illegal downloading is still rampant in those countries.