Here’s a comment by Eric Goldman of Santa Clara law school on a California court of appeals case, refusing to validate an arbitration clause in a ‘browsewrap’ format – i.e. a link to ‘terms of use’ with no requirement of the contracting party to acknowledge them.

Are such clauses enforced in Canada, except to prevent obvious dishonest behaviour as in Sutton Realty in Quebec or the similar BC case, Century 21 v Rogers Communications, about scraping real estate listings off an MLS site? (See par 92ff of that decision). Why should they be?

The ULCC published a study of them . . . [more]

From time to time the question of electronic wills is raised for discussion. This Uniform Law Conference has visited the topic a couple of times.

I have a related question today: should people be able to use electronic means to designate beneficiaries of savings plans (pension plans, RRSPs, TFSAs etc.) or insurance policies? If so, how? And if not, why not?

Usually such designations have be in writing and signed. The Uniform Electronic Commerce Act permits both e-documents and e-signatures. However, the UECA excludes wills and codicils. Most if not all provinces and territories have adopted this exclusion.

It is . . . [more]

Legislation recently introduced in the US Congress would compel publicly-traded companies to disclose in their filings with securities regulators whether any member of their board of directors was a ‘cybersecurity expert’.

Does this make sense to you? It does not to this commentator from the law firm Jones, Day. He says the role of the board is not to *be* the expert but to ensure that expertise is sought and its advice considered properly.

The comment notes that the SEC “has already made it clear that companies must disclose material cybersecurity risks and incidents to investors in their public filings.” . . . [more]

A Quebec court has recently held that Costco was not bound to sell a computer to a consumer for $2.00, as advertised on its web site. Although the Consumer Protection Act says that an ad to a consumer is an offer, the court (Cour du Québec) held that online sales are different.

Here’s an article about the decision.

I presume the decision would be similar in common-law Canada. Is it not general law that an ad on a website is considered an invitation to treat, rather than an offer that can be accepted by anyone in the world? Certainly the . . . [more]

Nova Scotia’s Cyber-Safety Act has been struck down as unconstitutional, with immediate effect.

The law clearly intended to restrict expression. The way it did so was held so vague as not to constitute a restriction “prescribed by law” as required by section 1 of the Charter. It was also disproportionate to the harms it sought to remedy. The court declined to suspend application of the ruling, as the Crown had requested.

Further details are in the blog of the successful counsel, David Fraser of Halifax.

Tragic circumstances do not justify a hasty or overbroad legislative response. . . . [more]

A lot of attention is being paid these days to cyberthreats and cybersecurity. It seems widely accepted that such threats and security questions cannot be confined to the IT department any more, but they involve sufficiently critical threats to organizations that boards of directors have to get involved. When boards get involved, they turn to their counsel.

Some enterprising law firms in the US have published books on the topic. The blurb for this one strikes me as a bit over the top – and the threats they sketch have been real for years (off-the-shelf attack software available for . . . [more]

According to the English media, Facebook is thinking of generating an automatic warning to a member who posts a picture of a child to a publicly-accessible page on Facebook.

Is this a serious over-reaction to the threat that the kid – or the parents – face from such a posting? How many people are actually affected by predators of any kind using online pictures? What proportion are those victims of the numbers of people whose pics are on FB?

Is this a tactic by FB to appear to be concerned about privacy when its entire lucrative business model is . . . [more]

In R. v Cusick, the Ontario Superior Court upheld a search warrant of a computer where that computer was suspected of having been used to upload child pornography to a cloud storage service.

What one searches for, apparently, are ‘artifacts’ – digital traces of the child porn files that passed through the computer on the way to the cloud. The case notes the difference between uploading from the computer’s hard drive (in which case the files may also still be on the computer) and uploading from a USB drive or mobile device (in which case they may not be, . . . [more]

As you know, the Canadian Senate Committee on Banking, Trade and Commerce published earlier this year a report on Bitcoin and other digital currencies. Bradley Crawford, author of the leading banking law treatise in Canada, has recently written a commentary on that report and on digital currencies generally. That comment – quite critical of the Senate’s report – will be added to his treatise later this month.

He raises one issue that seems to me particularly important to those who promote the use of digital currencies in commercial exchanges: the transfer of control of units of Bitcoin (or equivalent) . . . [more]

The Supreme Court of New Zealand has held that digital files in a CCTV system are property and could be stolen. Thus someone who accessed the system and uploaded the files to YouTube was convicted under the NZ criminal code for accessing a computer system without colour of right to obtain property.

The Court of Appeal had held that the digital files were not property, but the accused could be convicted of accessing the system to obtain a benefit, since he tried to sell the files before uploading them (not having found a buyer).

This seems like quite a change . . . [more]

We have occasionally discussed on this site (as recently as this week…) the implications of interconnected devices and the Internet of Things.

Here is an article that asks “should cyber-security vulnerabilities really be treated the same as design defects under traditional products liability law?”

The specific context is an infusion pump system that the Federal Drug Administration in the US thought was insecure and sent a warning about – a warning that sounded like a ‘defective product’ warning. The article raises a number of concerns about thinking about a security defect like another defect, including many complications about who . . . [more]

The Indian Supreme Court is to deal with a challenge to evidence of the complainant in a rape case that was taken by Skype. The complainant is Irish and is now in Ireland, and does not want to return to India for the trial.

The accused submits that the quality of the recording is not good enough to admit the evidence.

Does anything about the use of Skype in this case, or in general, make you uncomfortable?

Can there be a firm rule about the admissibility of private (or quasi-public) systems of video evidence, or should it depend on the . . . [more]