Survey of Internet Law

Me Allen Mendelsohn

November 6, 2012

Allen Mendelsohn

Lawyer + internet = me!

Survey of Internet Law

“There is no Internet Law… but everything is internet law”
- Anonymous internet lawyer, 2011

Survey of Internet Law

So what is internet law?
• Contracts • Civil liability • Intellectual property (copyrights, trademarks, etc.) • Charte de la langue française • Criminal law
o Specific computer crimes o “Offline” crimes online (hate speech, fraud, child pornography)

Survey of Internet Law

“The ability of the law to adapt is part of its strength. Technological innovation tests that resilience. This case considers that ability as claims for breach of contract, trespass to chattels and copyright infringement meet the Internet. At the root of this lawsuit is the legitimacy of indexing publically accessible websites.”
Century 21 Canada Limited Partnership v. Rogers Communications Inc., 2011 BCSC 1196

Survey of Internet Law

What isn’t internet law
• The Broadcasting Act, S.C. 1991, c. 11  CRTC regulates access, not content  e.g. Capacity-based billing of Telecom Regulatory Policy CRTC 2011703
 Supreme Court of Canada’s Reference

re Broadcasting Act, 2012 SCC 4
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A couple of laws
• Anti-spam Act (Bill c-28) • Personal Information Protection and Electronic Documents Act (S.C. 2000, c. 5) (PIPEDA) • Common Law Provincial e-commerce legislation

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Future laws?
• Bill C-30: Protecting Children from Internet Predators Act  Warrantless mandatory divulgence of ISP subscriber information to police  System of real-time surveillance technology to be implemented by ISPs  Bill C-12 revived instead

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Bill C-11: Copyright Modernization Act
• Secondary infringement – enabling:
27 (2.3) It is an infringement of copyright for a person, by means of the Internet or another digital network, to provide a service primarily for the purpose of enabling acts of copyright infringement if an actual infringement of copyright occurs by means of the Internet or another digital network as a result of the use of that service.

Survey of Internet Law

Bill C-11: Copyright Modernization Act (cont.)
• • Non-commercial user-generated content
29.21 (1) It is not an infringement of copyright for an individual to use an existing work or other subjectmatter or copy of one, which has been published or otherwise made available to the public, in the creation of a new work or other subject-matter in which copyright subsists…

 Conditions: 1. attribution; 2. non-commercial; 3. original work did not violate ©; 4. no adverse effect (financial or otherwise) on original work
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Bill C-11: Copyright Modernization Act (cont.)
• Parody and satire exceptions added to fair dealing (s. 29) • “Notice and notice” (ss. 41.25 ff.) “electronic location” • ISP and Hosting liability shield (s. 31.1) • Statutory damages limits (s. 38.1): $100-5000 for non-commercial (all works) $500-20,000 for commercial (each work)
Survey of Internet Law

So what do I do?
• 50% website documents drafting
o Terms of service / terms of use o Privacy policies o E-commerce contracts, online contest rules

• 50% everything else  copyright & trademark issues, domain name disputes, “Can I do ___ on the internet?”, startup advising, defamation and cyber-stalking
Survey of Internet Law

Top 00111000 Things to Advise Your Clients About the Internet

1. The internet is not the Wild West anymore

2. Internet users are no longer anonymous

Tracking “anonymous” internet users
• IP (Internet Protocol) Address
XXX.XXX.XXX.XXX where XXX = 0 to 255

• Voltage Pictures LLC v. Untel, 2011 FC 1024 (T.D.):
“where plaintiffs show that they have a bona fide claim that unknown persons are infringing their copyright, they have a right to have the identity revealed for the purpose of bringing action”

Survey of Internet Law

Tracking “anonymous” internet users (cont.)
• R. v. Ward, 2012 ONCA 660. On privacy:
“If, for example, the ISP disclosed more detailed information, or made the disclosure in relation to an investigation of an offence in which the service was not directly implicated, the reasonable expectation of privacy analysis might yield a different result.”

• Morris v. Johnson, 2011 ONSC 3996
Freedom of expression and right to privacy trumped the need to identify potential defendants because no prima facie case for defamation
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3. Have up to date and site-specific website documents

Terms of Use: The contract between website operator and user
• • • • Disclaimers Limitation of liability Intellectual Property rights Governing law and jurisdiction vs.
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Terms of Use: Clickwrap vs. Browse(r)wrap
• In re Inc., Customer Data Security Breach Litigation, 2012 WL 4466660 (Fed Ct. D. Nev.
Sept. 27, 2012)

“The arbitration provision found in the Terms of Use purportedly binds all users of the website by virtue of their browsing. However, the advent of the Internet has not changed the basic requirements of a contract, and there is no agreement where there is no acceptance, no meeting of the minds, and no manifestation of assent.”
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Terms of Use: Clickwrap vs. Browse(r)wrap (cont.)
• Van Tassell v. United Mktg. Grp. 795 F.Supp.2d 770, 23 790 (N.D. Ill. 2011):
“the determination of the validity of a browsewrap contract depends on whether the user has actual or constructive knowledge of a website's terms and conditions” “the validity of a browsewrap contract hinges on whether the website provides reasonable notice of the terms of the contract”

• Specht v. Netscape Communications Corp., 306 F.
3d 17 (Court of Appeals, 2nd Cir. 2002)
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Terms of Use: Clickwrap vs. Browse(r)wrap (cont.)
• Fteja v. Facebook, Inc., 2012 WL 183896 (S.D.N.Y. 2012). “Combination” Terms: “By clicking Sign Up, you are indicating that you have read and agree to the Terms of Service”  While not explicitly agreeing to the Terms like in a clickwrap, the Court held that this was sufficient to make the Terms enforceable
Survey of Internet Law

Terms of Use: Clickwrap vs. Browse(r)wrap (cont.)
• Century 21 Canada Limited Partnership v. Rogers Communications Inc. 2011 BCSC 1196
“To render Terms of Use unenforceable would impair the utility and health of the Internet as creator’s products would not be capable of contractual protection.” “where notice of the Terms of Use is established along with the knowledge that using the Website will serve as agreement to the Terms of Use, then I am satisfied that agreement is proven. As noted in the browse wrap cases, the act of proceeding further into the website is sufficient to communicate agreement.”
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Privacy Policy
• What personal data is collected, and what is done with it • Even if data is not explicitly asked for, it’s collected by technology • Data over the internet travels a looooooooong way in a short time  can be intercepted

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4. Be very, very, very careful with their website users’ data

Privacy Legislation
• PIPEDA • In Québec, An Act Respecting the Protection of Personal Information in the Private Sector,
R.S.Q., c. P-39.1

• Organization needs to protect data, and have policies • No fines, not much teeth. Privacy Commissioner just an ombudsperson, though influential (Facebook, Google street view)
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Future of PIPEDA
• Revisions underway (Bill C-12 November 2011) • Constitutional?
United Food and Commercial Workers, Local 401 v Alberta (Attorney General), 2012 ABCA 130, leave to SCC granted October 27, 2012

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So why be careful?
• Class action lawsuits
o Sony Playstation (filed May 2011, Ont. Sup. Ct.) $1 billion+ damages claimed

• Damages under PIPEDA
Landry v. Royal Bank of Canada, 2011 FC 687

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5. Make sure their website is bilingual

Bilingual websites in Québec
Article 52 Charte de la langue française:
Les catalogues, les brochures, les dépliants, les annuaires commerciaux et toute autre publication de même nature doivent être rédigés en français.

Fines up to $20,000

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6. Don’t spam!

Anti-spam Act (“CASL”)
An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act
Survey of Internet Law

CASL (cont.)
• No commercial spam, no alteration of messages in transit, no installation of malware / spyware to send spam • Need prior consent • “Commercial Electronic Message” which includes e-mails, text messages, instant messages, Tweets or Facebook postings • Fines up to $10 million for organizations, also private right of action for violation
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CASL (cont.): CRTC Regulations and Information Bulletins
• Content of CEM: name and contact info of sender • Unsubscribe option for all messages from a company • For oral consent, should have an unedited audio recording • For written consent, record the date, time, purpose, and manner of that consent and store it in a database • Never use “pre-checked boxes” for consent • Should send confirmation of express consent
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7. Have a detailed and specific social media policy

Social media in the workplace
• Officially on behalf of the employer:
o Avoiding liability: advertising laws apply; defamation and IP lawsuits  Supreme Court: hyperlinks not defamation (Crookes v. Newton, 2011 SCC 47) o Keeping information confidential

• In an unofficial capacity:
o Detailed guidelines on and off the job o Consequences – discipline, dismissal
Survey of Internet Law

Social media in the workplace (cont.)
• Lougheed Imports Ltd. (West Coast Mazda) v. United Food and Commercial Workers International Union, Local 1518, 2010 CanLII 62482 (BC LRB)

employees have no reasonable expectation of privacy in comments made on social networking sites • Pridgen v. University of Calgary, 2012 ABCA 139  when Charter applies, there is freedom of expression on Facebook • Leduc v. Roman, [2009] O.J. No. 681:  Facebook photos can be evidence
Survey of Internet Law

Social media in the workplace (cont.)
• Who owns a workplace Twitter account and followers? PhoneDog LLC v. Kravitz (N.D. Cal.)
@Phonedog_Noah had 17,000 followers

• Who owns a LinkedIn account? Eagle v. Morgan et al., (E.D.Pa.)

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8. The internet is the messiest “jurisdiction” in the history of law

Geographic Messiness

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Canadian Solution
• SCC: “Real and Substantial Connection” test:
Society of Composers, Authors and Music Publishers of Canada v. Canadian Assn. of Internet Providers, [2004] 2 S.C.R. 427 [the Tariff-22 case]

“this Court has recognized, as a sufficient ‘connection’ for taking jurisdiction, situations where Canada is the country of … reception”

Survey of Internet Law

Messiness within a Jurisdiction
• Applicability of multiple laws and / or actors for enforcement
o e.g. e-commerce – provincial acts, Consumer Protection Acts, general contract law, PIPEDA o e.g. Anti-spam Act – enforcement shared by the Office of the Privacy Commissioner, the CRTC, and the Competition Bureau

Survey of Internet Law

Additional 2012 Jurisprudence
• SCC Copyright Pentalogy:

1. SOCAN v. Bell 2012 SCC 36
 Song snippets are research fair dealing

2. ESA v. SOCAN 2012 SCC 34  “The Internet is simply a technological taxi” 3. Rogers v. SOCAN 2012 SCC 35
 Streaming music is “communication to the public” under the Copyright Act 4. and 5. (whatevs…)
Survey of Internet Law

Additional 2012 Jurisprudence (cont.)
• A.B. v. Bragg Communications Inc., 2012 SCC 46
Victim can remain anonymous in cyberbullying case because of potential harm, trumping open court principle • Warman v. Fournier, 2012 FC 803 (T.D.) Excerpting news stories verbatim on a website was not “substantial” copying, so no © infringement; also fair dealing as per CCH

• R. v. Cole, 2012 SCC 53
 “reasonable though diminished expectation of privacy” on workplace computer, even with policy against personal use of computer
Survey of Internet Law

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