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Archive for ‘ulc_ecomm_list’

Can You Be Prosecuted for a Facebook ‘like’?

A US appeals court found – properly, in my view – that clicking ‘Like’ on the Facebook page of a political candidate was political speech protected by freedom of expression law.

Another US court found that clicking on ‘Like’ on the Facebook page of someone who has a restraining order against any contact by the clicker is contempt of the restraining order. That too seems sensible, if severe. (Restraining orders often need to be severely enforced.)

Here is an account of a bit of a confused British situation, where someone is apparently being investigated by police for Liking a Facebook . . . [more]

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

Authentication vs Hearsay

The Ontario Court of Justice recently had occasion to consider the different grounds on which documentary evidence might be admitted or not admitted into evidence in a criminal case, in HMQ v Mondor.

Mr. Mondor was charged with accessing child pornography via a web site. The police had reconstituted the web site in order to trace certain purchases to the accused. As a result, the electronic records they used were not business records of the seller of the pornography for the purposes of s. 30 of the Canada Evidence Act. The Crown looked instead to what both it and . . . [more]

Posted in: Substantive Law: Judicial Decisions, ulc_ecomm_list

Electronic Evidence Case – Criminal Law and Social Media

The New Brunswick Court of Queen’s Bench recently admitted into a criminal case screenshots of a Facebook conversation that took place the day after an alleged sexual assault between the complainant and the accused. R v Nde Soh, 2014 NBQB 20

The court held – properly, in my view – that the screenshots were electronic documents within the meaning of ss. 31.1ff of the Canada Evidence Act, which reflect the Uniform Electronic Evidence Act. It found that the documents were properly authenticated. It decided that the computer system was sufficiently reliable in the absence of any evidence from . . . [more]

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

May Lawyers Advise Clients to ‘Clean Up’ Social Media Pages?

The question relates to the discoverability of social media information and whether having something on a ‘private’ page makes any difference. Case law has dealt with this too. My own summary is that any document relevant to civil litigation has to be disclosed by a party, wherever it is and however private it is. However, the opposing party will not be given free access to fish among private documents on mere speculation that there is something relevant there.

Once lawyers know this (and presumably most litigation lawyers now do), can they advise their clients to move stuff to private sections . . . [more]

Posted in: Practice of Law, Technology: Internet, ulc_ecomm_list

Browsing History – Does Knowledge of Site Administrators’ Access Give Consent to Disclosure to Law Enforcement?

A recent US decision held that a person’s browsing history on web dating sites – not just his profiles, which were clearly intended for public use – could be disclosed to police because the person had authorized the administrators of the sites to know what he was looking at. The case, People v Holmes, involved a high-profile defendant in a criminal case (the person who shot up the Colorado movie theatre – allegedly), but these cases should not turn on whether the person claiming a privacy right is sympathetic.

The key for the court is contained in this passage . . . [more]

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

Electronic Evidence: Spreadsheets Are Not Expert Evidence

In a recent civil case, the British Columbia Supreme Court had to decide on the admissibility in evidence of a database of transactions under a contract, and the results of SQL analysis of the database that produced a number of Excel format spreadsheets. The people who generated the spreadsheets were available to testify in person about how they had run the queries: Animal Welfare International Inc. v. W3 International Media Ltd., 2013 BCSC 2193 (CanLII).

The opposing party submitted that the analysis done in extracting the data constituted expert evidence, and the witnesses needed to be qualified as experts . . . [more]

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

Electronic Communications Under Federal Law

The electronic documents part of the Personal Information Protection and Electronic Documents Act (PIPEDA) generally operates on an opt-in basis. Thus, for example, s. 41:

A requirement under a provision of a federal law for a document to be in writing is satisfied by an electronic document if

(a) the federal law or the provision is listed in Schedule 2 or 3; and

(b) the regulations respecting the application of this section to the provision have been complied with.

To date, only the Federal Real Property and Federal Immovables Act and a small part of . . . [more]

Posted in: Substantive Law: Legislation, Technology, ulc_ecomm_list

Electronic Land Transactions in the United States

It has been suggested to me, at a couple of levels of hearsay, that that “the US government had to implement a provision to require the financial institutions to accept electronic signatures on agreements of purchase and sale [of land] for the purposes of financing.”

Can anyone tell me what is behind this statement? I have several questions, besides this general one:

  • had to implement’ – meaning ‘as a condition of validity’? or ‘to make some particular policy effective’?
  • ‘to require the financial institutions to accept e-signatures’ – really? Mandatory acceptance of e-signatures? *Any* e-signatures or only those with
. . . [more]
Posted in: Substantive Law: Foreign Law, Technology, ulc_ecomm_list

UK Defamation Act 2013 – Rules for Website Owners

The amendments to the Defamation Act passed in the UK earlier this year will come into force on January 1, 2014. There is a draft regulation on website owners’ liability for defamatory comments posted on their sites. There is quite a back-and-forth process.

Is a scheme like this a good idea for Canada? It is a kind of ‘notice and notice’ system, in which the original poster of the allegedly defamatory statements have to identify themselves (via the website operator) for litigation by the complainant, or the statements are deleted.

Here is Pinsent Mason’s description:

[Website operators have

. . . [more]
Posted in: Substantive Law: Foreign Law, ulc_ecomm_list

Remedies for Web Scraping

North American courts are not really sure what to do about web scraping, where someone uses automation to take information in bulk from a web site and puts it on his/her/its own site in competition with the original site. Sometimes (but not often) doing this is held to be trespass to chattels. More often it has been held to violate the terms of use of the victim site, even if those terms are ‘webwrap’, i.e. never explicitly consented to. (In fact, it is freakishly rare for webwrap conditions to be upheld except against scrapers).

The federal court in Illinois recently . . . [more]

Posted in: Technology: Internet, ulc_ecomm_list

May a Law Firm Read a Departed Partner’s Emails?

When a partner leaves a law firm for another practice, what should happen to his or her email account at the original firm? Should, or must, the original firm continue to read and respond to the emails? Must it forward all or some of the emails to the former partner? Should it say how that person can now be reached? Or should it simply send an automated bounce-back message that the email account is now closed?

These questions were the subject of an official ethics ruling of the Philadelphia Bar Association last month. Here is a news report on it. . . . [more]

Posted in: Practice of Law: Practice Management, ulc_ecomm_list

Will Blog Comments Support Cross-Examination?

It has been held in a US case that allegations made in comments on blog posts are not sufficiently reliable to be used in cross-examination. In this case an expert was testifying in a product liability case that the defendant’s products had never caught fire before (as the plaintiff’s had). The plaintiff’s counsel wanted to point to a number of comments in blogs about fires in some of the same manufacturer’s products. The court denied the right to use those examples.

Is that right? How much reliability do you need? Are blog comments the cross-examiner’s Wikipedia? (It was not suggested . . . [more]

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