Consumer Protection and EULAs

The Law Commissions of Scotland, England and Wales have proposed a clarification of British law about unfair terms in consumer contracts, to ensure that that law applies to end-user licence agreements for software and online services (EULAs).

Canadian jurisdictions do not (so far as I know) have legislation with ‘unfair terms’ in the name, while the UK has implemented the EU Directive on Unfair Terms. (French courts held a decade ago that online contracts, notably the AOL (2004) and Tiscali (2005) subscriber agreements, were subject to the comparable French law – and invalidated a large proportion of the terms that those contracts had imported from US sources.)

We do, however, have consumer protection legislation in all provinces, and other kinds of business regulation. Is there any doubt that the terms of EULAs would be covered by that legislation? Is there an argument that EULAs would be a matter of federal jurisdiction as part of services (or goods, at times) offered through telecommunications? Should the medium of communication of the EULA matter to the applicable law? EULAs can show up when one loads a CD bought at the local store, as well as when one downloads a program or app or … almost anything.

Besides the Competition Act’s basic rules against misrepresentation, is there a federal law that protects consumers as thoroughly as the provincial statutes? Does there have to be, or is all this matter clearly provincial?

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