Browsewrap “Contract” Upheld in Canada

The British Columbia Supreme Court has recently given judgment for Century 21 Real Estate company against a company (affiliated with Rogers Communications) that scraped real estate listing information from the Century 21 sites and repackaged it on its own site: Century 21 v Rogers Communications 2011 BC 1196 .

The court thoroughly reviewed US and Canadian law on the topic and recited a number of factors that might support a finding that a ‘browsewrap’ contract (i.e. one that did not depend on any active assent to its terms, but that operated by mere use of the web site) would be enforceable. The list is much like that generated by US courts in similar cases, and summarized in a very useful article in The Business Lawyer in 2003.^*

A similar result was given in Quebec on similar facts inCanadian Real Estate Association v Sutton Realty2003 CanLII 22519 (QC CS). (The decision was cited in the BC case.)

It seems to me that the common element of almost all the US cases and all the Canadian cases where a browsewrap ‘contract’ has been upheld is that the defendant was doing something that was obviously illicit, namely taking content from a website in order to use it in competition with the owner of the source website. Courts just don’t take kindly to that, and if they have to invent an agreement to shut it down, they will. It’s what the French courts would call ‘parasitism’, which is an extra-statutory remedy they have devised for activity they don’t like where someone is profiting from somebody else’s efforts in a way not foreseen by the Code of Intellectual Property.

The plaintiff in the BC case also won on a copyright argument. It did not persuade the court, however, that Rogers had committed ‘trespass to chattels’. The court was not prepared to import that notion into BC law, at least not on the facts in the case.

Do you find the result acceptable? The reasoning? Would it be better for courts not to invent contracts in such circumstances and find some kind of unjust enrichment or other equitable remedy for the behaviour to be sanctioned?

(I find it somehow satisfying that Rogers lost this one, given that company’s ‘success’ in arguing (in Kanitz v Rogers Cable Inc  2002 CanLII 49415 (ON SC) also cited in the BC case) that its customers had to live with the way the web worked, and burying a notice of a change in a contract five levels deep on a website was perfectly acceptable commercial dealing. Rogers won that one in an Ontario court, but lost it in the legislature when the type of change they made was banned in the (then) new Consumer Protection Act, 2002.)

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* C. Kunz, J, Ottaviani, E. Ziff, J. Moringiello, K. Porter and J. DeBrow, “Browse-Wrap Agreements: Validity of Implied Assent in Electronic Form Agreements”, 59 The Business Lawyer 279 (2003)

[hat tip: Blakes Bulletin]