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Archive for ‘ulc_ecomm_list’

Enforcing Facebook’s Click-Through Contract

Here’s a good review of the law on shrink-wrap, click-through and ‘browse-wrap’ contracts . I expect the law of New York is much like the law in at least common law Canada on the topic. The comment is inspired by a recent dispute about Facebook’s ability to enforce its forum-selection clause. The author says that most lawyers would have thought that FB’s sign-up process was ‘bullet-proof’, but the court still made a thorough analysis of it.

The process required the person signing up to click on the terms of service to see them, In other words, the assent to those . . . [more]

Posted in: Substantive Law: Foreign Law, Technology: Internet, ulc_ecomm_list

Can a Google Search Suggestion Be Defamatory?

The Paris court of appeals has decided that a suggested search query generated by the Google Suggest function defamed the company whose name was first entered into the search box. This feature works by displaying the most popular searches performed by other Google searchers associated with the text typed into the search box. So Google doesn’t decide what is displayed; its machines just count and show.

Turns out that one of the most popular associations with the name of the plaintiff company was ‘escroc’, which in French means crook or swindler.

Is this a kind of ‘crowd-sourced’ defamation? What can . . . [more]

Posted in: Substantive Law: Foreign Law, Technology: Internet, ulc_ecomm_list

Privacy and the Receipt of Personal Information From EU Countries

The EU privacy directive (1995 version – I gather that it is being revised, though I don’t know on what timetable) provides that member countries may not release personal information outside the EU unless the recipients are bound by equivalent safeguards for privacy.

While the US has a ‘safe harbor’ agreement with the EU about criteria for judging when the protections are equivalent, Canada does not. On the other hand, we have a generally applicable privacy law (PIPEDA) and some provincial equivalents, plus personal health information laws in most provinces. Are they enough to permit the personal information to come . . . [more]

Posted in: Substantive Law: Foreign Law, ulc_ecomm_list

Seasonal Disclaimers – and Copyright?

‘Tis the season for law firms (and no doubt others) to send out season’s greetings by email, most often accompanied by the usual wordy and sometimes bilingual notices that the content of the email may be confidential, privileged and subject to diverse prohibitions that we are more or less politely admonished to comply with.

Here’s a typical, though polite, version (French omitted):

CONFIDENTIALITY NOTICE: The contents of this electronic mail message are confidential and strictly reserved for the sole use of its intended recipients. This message may contain information protected by the solicitor-client privilege. If you receive this message in

. . . [more]
Posted in: Practice of Law, Technology: Internet, ulc_ecomm_list

Internet Defamation – Worse Than Other Media?

We read from time to time that Internet defamation is worse than that in other media because of its global reach and persistence over time. Thus the Ontario Court of Appeal in Barrick v Lopehandia 2004 CanLII 12938 issued an injunction against further defamation, in part because of the Internet’s character as “potentially a medium of virtually limitless international defamation” (the Court quoted Matthew Collins, The Law of Defamation and the Internet.) The court (by majority) also increased fivefold the damages awarded at trial, for similar reasons.

Recently the British Columbia Supreme Court granted ex parte injunctions against publication . . . [more]

Posted in: Substantive Law: Judicial Decisions, Technology: Internet, ulc_ecomm_list

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 . . . [more]

Posted in: Substantive Law: Judicial Decisions, ulc_ecomm_list

Hacking Into Bank Accounts – What Is the Bank’s Responsibility?

A U.S. court has decided that a bank whose client lost money because someone hacked into its account and transferred funds out of it, was not liable to the client because the bank had used ‘commercially reasonable’ security. The case is described on the Goodwin Proctor website. The lengthy decision of the Judge Magistrate in Patco Construction v People’s Bank, later upheld, is available online. .

Is this the right standard of care for negligence? Does it matter that the bank is regulated strictly under the Bank Act? Does it matter that the U.S. bank could . . . [more]

Posted in: Substantive Law: Foreign Law, Substantive Law: Judicial Decisions, ulc_ecomm_list

Authentication of Electronic Records – Some Recent Developments

Canadian and American courts (and others) have been making pronouncements about the reliability of electronic documents for various purposes, not all of them equally persuasive, and the Canadian ones more sceptical than the American courts — perhaps only because of the facts before them.

Comments welcome on any of these cases: were they rightly decided? Do they suggest gaps in legislation? . . . [more]

Posted in: Substantive Law: Judicial Decisions, Technology, ulc_ecomm_list

Is an Auto-Pen Signature a Signature at Law?

A group of US politicians are concerned that the President has not properly signed a law, a step described in the US Constitution, if his signature is applied to the relevant piece of paper by an auto-pen — whether or not the President authorized the application of the pen (being out of the country when the bill came up for signature, and things being rather urgent.)

Do you think this is right? I think it’s ludicrous, myself. My signature can be made by anyone I authorize to make it — or by a machine. Signatures made for me by other . . . [more]

Posted in: Technology, ulc_ecomm_list

Wireless Security and Crime Prevention

One of the interesting elements of Google’s StreetView program was that its camera crews picked up and recorded the location of wireless hotspots that were not secured. This information was not, so far as I recall, published by Google, but its collection made some news. It seems to me, however, that one hears less often about ‘war-driving’ and other forms of cruising about looking for unsecured wireless signals in order to piggyback onto the Internet with them. Is that because there are so many public wireless access spots available nowadays, or because broadband access has become so cheap that one . . . [more]

Posted in: Technology: Internet, ulc_ecomm_list

Domain Names – How to Get Them Back

The Ontario Superior Court recently released a judgment about recovering domain names, South Simcoe Railway Heritage Corporation v. Wakeford 2011 ONSC 1234, in this case a .com name rather than .ca domain name.

Someone who had been active in a voluntary organization registered a domain name for the organization and later transferred it into his own name. He also changed all the registration information settings to private so no one, including the organization, could track who was responsible for the site.

The plaintiff organization brought actions in ‘detinue sur trover’ (a new cause of action for me after all . . . [more]

Posted in: Substantive Law: Judicial Decisions, ulc_ecomm_list

United Nations Commission on International Trade Law Draft Procedural Rules for Online Dispute Resolution

As mentioned earlier this month on Slaw, the UNCITRAL Secretariat has published WP.107 for its meeting next month, setting out the first draft of a set of rules for procedure in online dispute resolution (ODR). That document is available online. With the same link you will find the report of the first meeting of the Working Group on ODR, from December 2010, to see how the group got to where it is now.

The principle of the draft rules is that they should apply readily to low-cost, high-volume disputes, so they should be simple and accessible and allow . . . [more]

Posted in: Substantive Law, ulc_ecomm_list