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    The Challenge of Enforcing the Do-Not-Call List Against Foreign Telemarketers

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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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    Quebec Court Rejects eBay's Online Contract Opening Door to Local Lawsuit

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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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    Quebec Court Says No to eBay's Online Contract

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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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    Courts Adopt Aggressive Approach in Cross-Border Internet Jurisdiction Cases

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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.

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