The PanAm games currently being held in Toronto had until very recently a ‘do not link’ term on its web page.

I do not understand why such a term would be enforceable. What legal right is asserted? Linking does not imply endorsement, as we know from defamation cases. Nor – so far as I know – does it constitute use of any trade mark in the URL linked to, by the person making the link. So – what?

The Toronto IP firm Bereskin and Parr sets out an analysis of this issue. It mentions some of the difficulties . . . [more]

It appears as if there is a major difference between Canadian and US law on standing to sue, at least in class actions.

Most US class actions by people whose personal information has been compromised in some way by a data breach have been stopped by a motion to dismiss. The essence of the argument is that the prospective plaintiffs have not suffered any demonstrable damage, and the US Constitution that authorizes the court system requires that there be a real dispute, which requires real damages.

On the other hand, the Federal Court of Appeal has just decided, in Condon . . . [more]

Are you keeping track of the law on digital currency such as Bitcoin? Are your clients using it, or wanting to? Are you?

The Senate of Canada has issued a report supporting its use. Here’s a story on the report (in case you don’t subscribe to Crypto Coin News…).

Objects in the future are closer than they appear (sometimes). . . . [more]

It has long been thought that using real names in Internet comments increases the civility of the comments. Here is a large-scale study purporting to demonstrate that this is true.

Anonymity and Online Commenting: The Broken Windows Effect and the End of Drive-by Commenting

The abstract:

In this study we ask how regulations about commenter identity affect the quantity and quality of discussion on commenting fora. In December 2013, the Huffington Post changed the rules for its comment forums to require participants to authenticate their accounts through Facebook. This enabled a large-scale ‘before and after’ analysis. We collected over 42m

The Regulation on Integrated Accessibility Standards under the Accessibility for Ontarians with Disabilities Act (AODA) provides, in s. 14, that ‘large organizations’

‘shall meet the requirements of this section in accordance with the following schedule:
1. By January 1, 2014, new internet websites and web content on those sites must conform with WCAG 2.0 Level A.’

Are your clients or other large organizations you know of complying with this obligation? Have they sought your advice on how to comply?

I ask not in order to send in the forces of order (‘not my department’, as we say in government), but . . . [more]

The United Kingdom has recently passed the Serious Crimes Act, 2015.

Part 2 of the Act makes several amendments to the Computer Misuse Act 1990 (“CMA”), including:

………..

– a new offence of unauthorised acts in relation to a computer that result either directly, or indirectly, in serious damage in any country to the economy, environment, national security or human welfare, or create a significant risk of such things. The offence will carry a maximum sentence of life imprisonment for some categories of cyberattack. A person is guilty of the offence if they, at the time of commission, are aware . . . [more]

The Court of Appeal in England has upheld a 2014 decision against Google about its scraping of information from users of the Safari browser. It classified a privacy action as a tort that will support a class action (called a ‘group action’ there) and also service out of the jurisdiction. The Court allowed the action to proceed without proof of pecuniary damages. It also held that ‘browser generated information’ (BGI) was personally identifiable information to which the Data Protection Act applied, though it did not contain the name of the person using the browser.

Google v Vidal-Hall : [2015] EWCA . . . [more]

In the days of electronic access, judicial decisions (and sometimes other court records that have always been public in principle) no longer benefit from practical obscurity. Court have had to wrestle with the consequences of this, including tailoring the way decisions are written to reduce the amount of personal information they contain.

The Canadian Judicial Council has published material on this, as have the federal and state courts in the US.

Recently a US lawyer proposed that databases of court decisions should block search engines from indexing the decisions – a block that is very easy to implement, with a . . . [more]

Both Canadian law and American law, through their uniform e-transactions statutes, give a wide definition to ‘electronic signature’ – being essentially any information in electronic form in or associated with a document with an intention to sign the document.

The ‘intention to sign’ requirement aimed to ensure that the same mental element was required for an e-signature as for a handwritten signature.

A recent California Court of Appeal case, J.B.B. Investment Partners v Fair, held that a person who typed his name at the bottom of an email saying ‘ I agree’ to settlement agreement sent to him by . . . [more]

The Ministry of the Attorney General is considering an online dispute resolution (ODR) system for dealing with some provincial offences, mainly traffic offences to start.

The system would rely on administrative monetary penalties rather than judicially-imposed fines. The consultation document talks about how someone with a ticket could challenge it online, as well as finding out more about how the process works.

Here is a useful table showing the major changes.

Feel free to participate in the consultation, or to say what you think of it here, or both. . . . [more]

The UK has just passed a law to criminalize revenge porn (see ss 33 – 35). A fair amount of discussion clearly went into the drafting, considering the qualifications and the language. The law prohibits the publication or distribution of a ‘private sexual photograph or film’ without the consent of the subject and with the intention to cause the subject distress. There are fairly subtle definitions of the images, a broad definition of distribution (online or offline), and a requirement that the intention be specific, not just inferred as a reasonable consequence of publication or distribution.

This article describes the . . . [more]

The Supreme Court of Canada in Crookes v Newton held that the mere linking to a web site that contained defamatory material did not make the linker liable for defamation. Adding content to the link might change that result.

The Supreme Court of British Columbia has recently held, however, that offering a link to an email program (e.g. ‘mailto:’) on a web page that contains defamatory material constitutes republication of that material, apparently whether or not anyone used it.

Weaver v Corcoran 2015 BCSC 165 (CanLII)

Here is the main passage on that point:

[261] The invitation to email the