MICHAEL GEIST
Thursday, June 29, 2000
W
ith our extensive coverage of U.S. cyberlaw cases, Canadians can be forgiven for thinking that our two legal systems treat cyberlaw issues in an identical manner. In fact, the Canadian approach frequently differs from that found in the United States.
That general misconception is enough to make someone rant, particularly with Canada Day nearly upon us:
I'm not a hacker, or a spammer, or a seller of private data. I don't issue business method patents . . . The controversial U.S. business method patent has led to a range of e-commerce patent awards including Amazon's one-click purchasing process. Though many Canadian companies have applied for such patents in the U.S., it is not available in Canada.
. . . or have legislation targeting spam. Canada rejected spam-specific legislation last year, unlike the U.S., which has had anti-spam laws introduced at both the federal and state levels.
And I don't know Mafiaboy or the Montreal teen who hacked into NASA, although I'm certain they're both very, very sorry.
I have a Charter of Rights, not a Bill of Rights . . . The difference between our two countries' approach to constitutional law is best demonstrated by the difficulty U.S. legislators have faced in crafting laws targeting on-line obscenity that pass constitutional muster. Canadian enforcement of speech laws, such as the hate speech provisions, have been upheld as constitutional by the Supreme Court.
. . . a Copyright Act, not a Digital Millennium Copyright Act . . . The Canadian Copyright Act is typically perceived to be less friendly to copyright holders than its U.S. counterpart, as illustrated by the retransmission provisions utilized by Webcaster iCraveTV earlier this year.
. . . and a study on Internet taxation, not the Internet Taxation Freedom Act. Canada has yet to implement any definitive Internet taxation policy, unlike the U.S., which has enacted an Internet tax moratorium until 2006.
I believe in privacy e-commerce legislation, not self-regulation . . . Canada's e-commerce privacy legislation received royal assent in April, while the U.S. holds out for an industry-led solution.
. . . in the need to mandate open access to high-speed cable Internet access, not to leave it to market forces . . . The Canadian Radio-television and Telecommunications Commission last year ordered Canada's cable companies to provide open access to competitors. Last week, a U.S. appellate court struck down an attempt by the Portland, Ore., local government to accomplish much the same thing.
. . . and that it is pronounced the Uniform Electronic Commerce Act, not the Uniform Electronic Transaction Act. Although the two acts are similar, the Canadian e-commerce model law is called the UECA, while the U.S. version is called the UETA. Both have been well received in their respective countries.
I can proudly point to a hands-off approach to regulating Internet content . . . Last year's CRTC New Media report allayed fears that the commission might seek to "regulate the Internet."
. . . to an aggressive approach to on-line hate speech . . . Canada's Human Rights Commission has sought to apply Canadian human rights legislation to on-line hate speech connected to Canada.
. . . and to the relatively unhindered export of cryptography products. Canada has encouraged its cryptography industry by relaxing regulatory controls on its cryptography exports. Despite some attempts to follow suit, the United States has been torn between economic and security interests.
Canada was the first jurisdiction to uphold the validity of a netiquette clause . . . An Ontario court was the first in the world to grant legal validity to a netiquette contract clause, the legal equivalent of a good behaviour requirement.
. . . home of the first securities commission to shut down an on-line offshore stock exchange . . . The Alberta Securities Commission adopted an aggressive enforcement approach earlier this year when it successfully shut down an Antigua-based on-line stock exchange that orignated in the province.
. . . and the first country to ensure that every school and public library is connected to the Internet. Ottawa's SchoolNet program completed this mandate in March, 1999.
My name is Michael, and I am a Canadian cyberlaw professor.
Michael Geist can be reached at mgeist@uottawa.ca and on the Web at http://www.lawbytes.com.
