[ql06] GENERAL: Law and technology
- From: "Kenneth Campbell [QL06]" <2kc16@xxxxxxxxxxxxxxxx>
- To: <ql06@xxxxxxxxxxxxx>
- Date: Mon, 15 Dec 2003 11:51:28 -0500
Cute little article, running down many of the news stories from the year
relating to tech and the net.
So how do I get this Geist guy's job, huh? I wanna do that: Canada
Research Chair in Internet and E-commerce Law at, say, the University of
Toronto and technology counsel with law firm, say, well, he's got
Oslers, gimme McCarthys.
Steve, come up with a gameplan. Adam, help found the research chair.
Ah, well, Santa will have to wait a couple years before that, I guess.
More likely I'd end up like Radwanski.
Best to everyone in the holidays.
That was a pretty sparse crowd in Contracts this morning... I didn't
really study much, but relied on my memory. I'll let you know how
intelligent THAT idea was in January.
Ken.
--
It is not those who can inflict the most, but
those who can suffer the most, who will conquer.
-- Terence MacSwiney
Irish Republican
--- cut here ---
`D' is for disputes that shape our lives
Court cases affected spam, copyright, music and much more in 2003
MICHAEL GEIST
LAW BYTES
TORONTO STAR
Dec. 15, 2003
As individuals grappled with a deluge of spam and anti-spam legislation,
concerns about their personal privacy, and confusion over the
application of copyright law to the online environment, 2003 was a busy
year for technology law. Although activities south of the border often
capture headlines, Canadian technology law developments literally ran
the gamut from A to Z.
A is for Amazon.com, which joined the anti-spam fight in August by
filing lawsuits against 11 e-mail marketers in Canadian and U.S. courts.
The online giant argued that the marketers forged their e-mail addresses
to appear as if messages were sent by Amazon.com and sought injunctions
to stop the alleged forgeries as well as millions of dollars in punitive
damages.
B is for Bahlieda v. Santa, an October Ontario Court of Appeal decision
that overturned a controversial lower court decision which found that
material placed on a Web site constitutes a "broadcast" within the
meaning of Ontario's Libel and Slander Act. The court noted the case
raised important issues on the broadcast definition question as well as
whether repeated viewings of a Web page constitute republication.
C is for the Canadian Blood Services, which obtained a court order in
November requiring Bell Canada to reveal the identity of a subscriber
who sent it an e-mail claiming to be homosexual and having donated
blood, a violation of CBS rules. Once the man was identified, CBS said
it planned to sue him for misrepresentation.
D is for Drugs, one of the hottest online legal issues of the year. As
the sales of drugs from Canadian Web sites to U.S. consumers continued
to grow, the U.S. Food and Drug Administration indicated that it would
seek help from the Canadian government to cut down on the sales.
Meanwhile, the College of Physicians and Surgeons of Manitoba, the
province's physician regulatory group, reprimanded four provincial
doctors for assisting online pharmacies by countersigning prescriptions.
E is for Ecuyer v. Aeroports de Montreal, a May Federal Court decision
in which the court ruled it did not have jurisdiction to address an
appeal of a Canadian privacy commissioner decision. The case, itself
currently under appeal, involved an employment dispute and disclosure of
information to a trade union, which the court ruled fell under the
exclusive jurisdiction of a labour arbitration panel under the Canadian
Labour Code.
F is for the Free Trade Area of the Americas Agreement, which stirred
interest from the intellectual property and Internet communities when
negotiators met in Miami in November. Draft language in the FTAA opened
the door to changes in Canadian copyright law, despite the fact that the
issues were still the subject of considerable debate amongst Canada's
copyright policymakers.
G is for Governance of the Internet, which took centre stage in Montreal
in June as Canada played host to its first Internet Corporation for
Assigned Names and Numbers meeting. The body is responsible for
administering the domain name system. Later in the year, ICANN's
position was thrown in doubt as governments around the world agreed at
the World Summit on the Information Society to create a working group to
examine the future of Internet governance.
H is for R. v. Hamilton, an August Alberta Court of Appeal decision that
upheld the acquittal of a man charged under Canada's criminal code for
sending spam that marketed documents that included bomb-making
information. The court upheld a lower court's decision that the man did
not have the requisite knowledge for the offence of counseling a
criminal offence not committed.
I is for ISM Canada, a subsidiary of IBM Canada, which captured national
headlines in January when one of its computer hard drives containing the
personal information of hundreds of thousands of Canadians was stolen.
The hard drive was subsequently recovered with the blame placed on a
former employee of the company.
J is for Jennifer Stoddart, the former Quebec Privacy Commissioner named
to the federal post in October following months of controversy at the
Federal Privacy Commissioner's office (see "R" below).
K is for Fred Kyburz who was ordered by the Canadian Human Rights
Tribunal to pay an Ottawa lawyer $30,000 in compensation for personal
attacks made from his Web site. The lawyer, Richard Warman, sought to
have the site removed from the Internet on the grounds that he believed
it violated Canada's hate propaganda laws, but then became the target of
personal attacks by Kyburz's Alberta-based site.
L is for the Lucy Maud Montgomery Copyright Term Extension Act, better
known as Bill C-36. The bill initially envisioned extending the term of
copyright for Lucy Maud Montgomery's unpublished works until 2017. The
final bill shortened the term extension to 2006, but its future remains
in doubt since the Senate did not pass it prior to the decision to
prorogue Parliament, which effectively terminated any bills waiting to
be passed.
M is for MLS.ca, the domain name at the heart of the Canadian Real
Estate Association v. Sutton Real Estate Services case. The April Quebec
court decision focused on a dispute over access and use of online real
estate listings, raising issues pertaining to the enforceability of
online contracts.
N is for the National ID Card debate. Denis Coderre, the
then-Immigration Minister, convened a two-day summit on the issue, which
was eclipsed by a Canadian Parliamentary Committee study that cautioned
against the possible creation of a national identity card for Canada.
O is for Senator Dan Oliver, who introduced one of the year's two
anti-spam private member's bills in September. Senator Oliver's Bill
S-23 called for the creation of a no-spam list, more severe offences for
sending spam, international efforts to deal with spam, and envisioned
the creation of an Internet Consumer Protection Council to set standards
for reducing spam. Meanwhile, MP Dan McTeague introduced a private
member's bill in October that would establish anti-spam provisions in
the Canadian criminal code. The bill called for a two-year prison term
and/or a $250,000 fine for first time spammers with the punishment
escalating to five years in jail and $500,000 fine for second time
offenders. Neither bill was passed by Parliament.
P is for private copying and last week's Copyright Board of Canada
landmark decision. The board determined that the levy on blank media,
which is used to compensate artists and the music industry for
consumers' rights to make personal, non-commercial copies of music,
should be extended to MP3 players. In the process, however, the Board
provided its clearest signal yet that it views peer-to-peer downloading
of music as lawful in Canada under certain circumstances. The decision
also opened the door to extending the levy to personal computer hard
drives, an issue that will likely take centre stage when the tariff rate
is revisited by the Board in 2005.
Q is for Qwest Communications, a leading U.S. telecommunications
company, which removed holocaust denier Ernst Zundel's Web site from its
network. Zundel, who has been found guilty of spreading hatred via the
site in violation of the Canadian Human Rights Act, used a U.S.-based
ISP to keep the site online. QWest removed the site after being alerted
to the controversy by the Canadian Human Rights Commission.
R is for George Radwanski, Canada's former Privacy Commissioner who
resigned from his position in June. Radwanski got weeks of media
attention following revelations of significant travel expenditures and
possible deception of a parliamentary committee.
S is for Substantially Similar Provincial Privacy Legislation. Facing a
January 1, 2004 deadline, British Columbia and Alberta, stepped up and
passed provincial privacy legislation by year-end. They join Quebec,
whose private sector privacy legislation predates the federal law, as
the only three provinces to thus far enact private sector privacy
legislation.
T is for the Tariff 22 case, officially knows as SOCAN v. CAIP, heard by
the Supreme Court of Canada in early December. The case attracted
international attention as it raised issues of ISP liability for use of
a technology known as caching to speed up network access to content as
well as the prospect for ISPs to face a tariff for online music
downloads.
U is for an Unknown magazine that was hit with a major privacy decision
that called into question standard industry practice for obtaining
subscriber consents to having personal information transferred to third
parties. The decision has the potential to require Canadian magazines to
include privacy choices on subscription cards. The name of the magazine
subject to the decision is unknown due to the policy of the Federal
Privacy Commissioner to keep the names of parties subject to privacy
findings private.
V is for Voice-over-IP phone service and for Vonage, the upstart VoIP
provider that soon plans to enter the Canadian market. VoIP caught the
attention of regulators in 2003 as several U.S. states sought to treat
the service much like traditional telephone providers. In late 2003,
Bell Canada asked the CRTC to put the issue on the fast track in Canada.
W is for WIC v. ITV, a Federal Court case involving a dispute over the
"itv.net" domain name. The case includes some interesting discussion on
the use of the Internet within the Canadian court system. The court
allowed the use of the Internet for performing demonstrations,
cross-examining witnesses, and retrieving electronic versions of paper
documents.
X is for the "x" placed on election ballots and the application of the
Canada Elections Act to the Internet. In October, the British Columbia
Supreme Court overturned an earlier ruling that held that a provincial
resident violated the Act by posting results of the 2000 federal
election on the Internet. The court ruled that the section of the Act
banning the release of election results before the polls have closed
across the country is unconstitutional.
Y is for Yahoo!, which found one of its discussion groups blocked by
ISPs in India under order by the Indian Department of
Telecommunications. The case was one of several worldwide that examined
free speech on the Internet in 2003.
Z is for Zhu v. Merrill Lynch HSBC, a British Columbia court decision
involving a dispute over a cancelled securities transaction. The court
ruled that Merrill Lynch's disclaimers posted on its site as well as its
user agreement were unenforceable.
It added that due to the nature of its services, the company owed a
higher duty of care than ordinarily expected in the provision of
services and that its computer system did not meet that standard.
------------------------------------------------------------------------
--------
Michael Geist is Canada Research Chair in Internet and E-commerce Law at
the University of Ottawa and technology counsel with law firm Osler
Hoskin & Harcourt LLP. He is on-line at http://www.michaelgeist.ca and
http://www.osler.com (mgeist@xxxxxxxxxx). The opinions expressed herein
are personal and do not necessarily reflect those of the University of
Ottawa or Osler, Hoskin & Harcourt LLP.
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