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E-Business (Updated on Thursdays)



CYBERLAW

B.C. court shores up protection for anticorporate protest sites



MICHAEL GEIST

Thursday, February 15, 2001

Conduct an Internet search for any major corporation and you are likely to encounter not only its official corporate Web site, but also several protest or criticism sites claiming that the company "sucks." The legality of such protest sites has emerged as a touchy legal issue since the right of free speech must be balanced against defamation and intellectual property rights.

Although U.S. courts have examined the legal protection enjoyed by protest sites on several occasions, until just over two weeks ago no Canadian court had issued a ruling on the issue.

At that time the British Columbia Supreme Court made a landmark decision involving a case of "cyberpicketing." The decision is likely to make protest site owners happy, but could prompt the British Columbia Automobile Association (BCAA) to contemplate the creation of a "B.C. Courts suck" site. It will also send Canadian Internet law lawyers scrambling to keep pace with developments worldwide.

The case was set in motion when the Office and Professional Employees' International Union, Local 378 -- a trade union that represents workers at 10 unionized offices of the BCAA -- launched a strike in January, 1999. Two months later it established a strike Web site, using both bcaaonstrike.com and picketline.com as its domain names.

The initial strike site looked very similar to the official BCAA site, employing the same colour scheme and layout, a similar logo, and the words "Greetings, BCAA is on strike." Moreover, the site's metatags -- which are unseen by visitors but gathered by Internet search engines to index Web sites -- were nearly identical to those found in the BCAA site.

When the BCAA objected to the strike site, the union altered the colour scheme, removed the logo, changed the greeting to "Greetings, OPEIU is on strike against the BCAA," but left the metatags largely intact.

The changes did not pacify the BCAA, which launched a lawsuit based on several legal issues. First, it argued that the presence of the term BCAA within the strike site domain name constituted "passing off" -- a legal term for implying an affiliation that doesn't exist. It cited the strike site as being the source of confusion with its own domains, bcaa.com, bcaa.org, and bcaa.bc.ca. Second, it objected to the presence of words such as "British Columbia Automobile Association" and "BCAAonstrike" within the site's metatags. Third, it argued that the early versions of the strike site constituted copyright infringement and that the union was liable for damages.

Although the court found that the early versions of the strike site did indeed constitute copyright infringement and merited a nominal damage award, it reserved most of its analysis and discussion for the question of the legality of the domain names and the reproduction of the BCAA metatags.

On the latter issues, the court sided with the union, ruling that the domains and metatags did not constitute passing off.

The court based its decision on three key factors. First, the fact that the strike site domain was not identical to the BCAA trademark suggested that it was not a BCAA-sponsored site and was unlikely to create confusion.

Second, it noted that the union was not competing commercially with the BCAA, but rather was seeking to communicate its message to the public about an ongoing labour relations campaign. The court ruled that "the use of similar metatags or domain names is of less significance in a labour-relations or consumer-criticism situation, partly because there is far less likelihood that there will be confusion."

Third, the presence of a disclaimer on the strike site influenced the court's thinking by supporting the union's argument that the public was unlikely to confuse the strike site with the official BCAA site.

In delivering its well-reasoned opinion, the B.C. Supreme Court was acutely aware of the need for a fair balance between free speech and intellectual property rights, arguing that the use of the BCAA name in the metatags was simply a reasonable way for the union to bring its message to the public.

Sites that infringe copyright, include defamatory content, or create public confusion by not including prominent disclaimers, are still likely to face a tough time in court. Sites, however, that engage in genuine consumer criticism or corporate protest can now rest somewhat easier, safe in the knowledge that legal protections for critical speech exist on-line as well as off-line.
Michael Geist is a law professor at the University of Ottawa Law School and director of e-commerce law at the law firm Goodmans LLP.
mgeist@uottawa.ca


 


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