Abandoned border by mtsrs (CC BY 2.0) https://flic.kr/p/49aR7g
The challenge of jurisdiction and the Internet has long been one of the most contentious online legal issues. Given that the Internet has little regard for conventional borders, the question of whose law applies, which court gets to apply it, and how it can be enforced is seemingly always a challenge.
Striking the right balance can be exceptionally difficult: if courts are unable to assert jurisdiction, the Internet becomes a proverbial “wild west” with no applicable law. Conversely, if every court asserts jurisdiction, the Internet becomes over-regulated with a myriad of potentially conflicting laws vying to govern online activities.
My weekly technology law column (Toronto Star version, homepage version) notes that in recent years, courts in many countries have adopted a reasonable balance where they are willing to assert jurisdiction over online activities or companies where there is a “real and substantial” connection, but they limit the scope of enforcing their rulings to their own jurisdiction. In other words, companies cannot disregard local laws where they operate there, but courts similarly should not disregard the prospect of conflicting rules between different countries.
In the aftermath of the European Court of Justice “right to be forgotten” decision, many asked whether a similar ruling could arise in Canada. While a privacy-related ruling has yet to hit Canada, last week the Supreme Court of British Columbia relied in part on the decision in issuing an unprecedented order requiring Google to remove websites from its global index. The ruling in Equustek Solutions Inc. v. Jack is unusual since its reach extends far beyond Canada. Rather than ordering the company to remove certain links from the search results available through Google.ca, the order intentionally targets the entire database, requiring the company to ensure that no one, anywhere in the world, can see the search results. Note that this differs from the European right to be forgotten ruling, which is limited to Europe.
The implications are enormous since if a Canadian court has the power to limit access to information for the globe, presumably other courts would as well. While the court does not grapple with this possibility, what happens if a Russian court orders Google to remove gay and lesbian sites from its database? Or if Iran orders it remove Israeli sites from the database? The possibilities are endless since local rules of freedom of expression often differ from country to country. Yet the B.C. court adopts the view that it can issue an order with global effect. Its reasoning is very weak, concluding that:
the injunction would compel Google to take steps in California or the state in which its search engine is controlled, and would not therefore direct that steps be taken around the world. That the effect of the injunction could reach beyond one state is a separate issue.
Unfortunately, it does not engage effectively with this “separate issue.”
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:
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.
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 […]