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Monday April 22, 2013 |
Last October, the CRTC announced that it was taking action against two India-based companies for violating Canada's do-not-call list. The action against Pecon Software Limited
was particularly noteworthy, as the Commission ordered a stop to the
violations and payment of $495,000. Andrea Rosen, the CRTC's Chief
Compliance and Enforcement Officer was quoted as saying that
"foreign-based telemarketers have been put on notice that they must
comply with our rules when calling Canadians."
The tough talk was welcome, but months later, the CRTC has struggled to
get Pecon Software to pay up. Liberal MP Lawrence MacAulay asked the government
to provide an update on the action and Canadian Heritage Minister James
Moore provided the following update to the House of Commons on Friday:
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Thursday April 04, 2013 |
Few things are more common on the Internet than the lengthy, largely
incomprehensible, online contracts that are often buried at the bottom
of web pages with a simple link to "terms". These agreements sometimes
run dozens of pages if printed out and invariably transfer all
responsibility and liability to the user, while selecting a jurisdiction
clause that is advantageous to the website and inconvenient to most
users.
Consumers agree to these contracts dozens of times each day (sometimes
proactively by clicking that they agree and most other times by
impliedly agreeing to the terms by using the website), but the
enforceability of all the terms within the agreement remains an open
question.
The law has removed most uncertainty about whether an electronic
contract can be enforceable - it can - but ensuring that the form of the
contract is valid does not mean that all of its provisions will be
enforced by a court. My weekly technology law column (Toronto Star version, homepage version) notes that last month, a Quebec court provided an important
reminder that some provisions may not be enforced, as it rejected eBay's
standard terms which require all disputes to be adjudicated in
California.
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Wednesday April 03, 2013 |
Appeared in the Toronto Star on March 30, 2013 as Quebec Court Says No To eBay's Online Contract
Few things are more common on the Internet than the lengthy, largely
incomprehensible, online contracts that are often buried at the bottom
of web pages with a simple link to "terms". These agreements sometimes
run dozens of pages if printed out and invariably transfer all
responsibility and liability to the user, while selecting a jurisdiction
clause that is advantageous to the website and inconvenient to most
users.
Consumers agree to these contracts dozens of times each day (sometimes
proactively by clicking that they agree and most other times by
impliedly agreeing to the terms by using the website), but the
enforceability of all the terms within the agreement remains an open
question.
The law has removed most uncertainty about whether an electronic
contract can be enforceable - it can - but ensuring that the form of the
contract is valid does not mean that all of its provisions will be
enforced by a court. Last month, a Quebec court provided an important
reminder that some provisions may not be enforced, as it rejected eBay's
standard terms which require all disputes to be adjudicated in
California.
The case involved an auction gone bad with the Montreal-based sellers
seeking to hold eBay responsible. Two students had acquired a rare pair
of Nike shoes produced for the National Basketball Association 2012
All-Star game. The shoes were listed for auction on eBay and quickly
garnered bids that exceeded U.S.$50,000. Before the auction was
concluded, however, eBay stopped the auction (the reasons have yet to be
disclosed in court).
The two students sued the online auction giant in a Quebec court,
arguing that it could assert jurisdiction over the matter since the
sellers were located in the province. eBay countered by noting that
though its terms of use agreement states that all disputes are governed
by Ontario and Canadian laws, any litigation must occur in California.
The Quebec court was not impressed, noting that the eBay agreement was
over six pages of dense text with "a large number of conditions and
restrictions stacked on top of each other in language that is difficult
to understand." The jurisdiction clause was located at the bottom of
page five, leading the court to wryly conclude that for a user with very
good eye sight and lots of patience and determination, they will find
the provision stipulating California as the forum for disputes.
The court suggested that the choice of California appeared to be an
attempt to dissuade potential litigants from proceeding with their
action, noting that using Canadian law as the governing law but
California courts as the jurisdiction for disputes was inserted to
"prevent, deter, and void" any appeal against eBay.
Given the court's discomfort with the eBay agreement, it concluded that
the California jurisdiction provision was "excessive and unreasonable"
and therefore void. The decision allows the two students to continue
their action against eBay in the Quebec courts.
The ruling runs counter to earlier Canadian cases that have generally
granted considerable deference to freedom of contract and the ability to
enforce somewhat onerous jurisdiction clauses.
For example, one of the first e-commerce cases in Canada involved a
lawsuit against Microsoft, which at the time was offering Internet
access services. The lawsuit was launched in Ontario, but Microsoft's
electronic user agreement included a provision stipulating the State of
Washington as the jurisdiction to settle disputes.
An Ontario court upheld both the contract and the provision, warning in a
1999 decision that failure to enforce electronic contracts would "lead
to chaos in the marketplace, render ineffectual electronic commerce and
undermine the integrity of any agreement entered into through this
medium."
Those concerns may have been valid when e-commerce was just getting
started, but years later the Quebec decision suggests that e-commerce is
also dependent upon fair contracts that grant a genuine ability to
pursue legal action in the event of a dispute.
Michael Geist holds the Canada Research Chair in Internet and
E-commerce Law at the University of Ottawa, Faculty of Law. He can
reached at mgeist@uottawa.ca or online at www.michaelgeist.ca.
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Wednesday January 09, 2013 |
In a world where data now moves effortlessly between computers on the
Internet without regard for geographic borders, is the appearance of a
website on a computer screen sufficient for a court to claim that a
trademark has been used in the country? Is the use of a computer server
enough to assert jurisdiction over a non-resident? My weekly technology law column (Toronto Star version, homepage version) notes that two recent
cross-border cases - one Canadian and one U.S. which both pitted a U.S.
company against a Canadian individual - found that it is.
The Canadian case involved a trade-mark dispute over the mark VRBO.
Martin Hrdlicka, a Toronto resident, registered the mark in Canada in
2009. Just over a year later, Homeaway.com, a U.S. company that owns the
popular VRBO.com site, sought to expunge the trade-mark on the grounds
that Hrdlicka was not entitled to register the mark and had no intent to
use it.
Homeaway.com's legal challenge was that the company had no operations in
Canada, though many Canadians may have accessed its U.S.-based website.
Trade-mark law requires some use of the mark in Canada, yet the "use"
in this case was largely confined to the availability of the VRBO
website on computer screens.
deiter, homeaway.com, jurisdiction, trademark, vrbo Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterTagsShareWednesday January 09, 2013 |
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