[IP] A to Z Year in Canadian Tech Law
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Date: Mon, 15 Dec 2003 08:31:38 -0500
From: Michael Geist <mgeist@xxxxxxxxx>
Subject: A to Z Year in Canadian Tech Law
X-Sender: mgeist@xxxxxxxxxxxxxxxxxx
To: dave@xxxxxxxxxx
Dave,
Canadian-focused, but of possible interest to your readers -- my regular
Toronto Star Law Bytes column provides an A to Z look back at the year in
technology law in Canada. The column focuses on leading cases, legislative
developments in the spam and privacy world, and emerging copyright policy
concerns.
Column at
<http://shorl.com/bejikutanapru> [Toronto Star]
MG
`D' is for disputes that shape our lives
Court cases affected spam, copyright, music and much more in 2003
MICHAEL GEIST
LAW BYTES
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.
--
**********************************************************************
Professor Michael A. Geist
Canada Research Chair in Internet and E-commerce Law
University of Ottawa Law School, Common Law Section
Technology Counsel, Osler, Hoskin & Harcourt LLP
57 Louis Pasteur St., P.O. Box 450, Stn. A, Ottawa, Ontario, K1N 6N5
Tel: 613-562-5800, x3319 Fax: 613-562-5124
mgeist@xxxxxxxxx http://www.michaelgeist.ca
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