That’s the title of my Slaw post for today.  It reads as follows.

I’ve been thinking about mobile commerce recently, in part because I am on a panel at the Canadian IT Law Association annual conference tomorrow entitled “Mobile Business: Industry Trends, Public Policy Issues and Legal Implications” along with Jacob Glick of Google, and Eric Gross of Gowlings.

m-commerce is already here, and will grow significantly in the near future. Consider that mobile devices are outselling PC’s.

North America is not on the leading edge of this. Places like Japan and Korea, and parts of Europe are ahead of us.

As examples of what can be done, take a look at these McDonald’s interactive billboards. You play a game on the billboard using your phone to win a virtual coupon. (Ironically, the videos in the article at this link might not play on your iPhone).

Also see the virtual grocery store in a south Korean subway station. The walls have images of store shelves. You take pictures QR codes beside items you want, and the store delivers the purchases to you shortly after you get home.

For the London Free Press – October 24, 2011 – Read this on Canoe

Are Browse-wrap agreements binding?

Most web sites contain a link at the bottom of the page to “terms of use”. But are they binding on those who use the website? A recent Canadian case says they are.

Despite the prevalence of terms of use linked to the bottom of web pages, Canadian courts have not spent much time discussing whether they are binding the same way that “click-wrap” agreements are.

The Ontario Superior Court decision in Century 21 Canada Limited Partnership versus Rogers Communications Inc. shed some light on this issue. The case discussed the evolution of agreements as software sales have shifted from boxed software purchases to online.

“Shrink wrap” agreements are contracts that are entered into by the purchaser when they tear open the shrink wrap of a software purchase. Implicit in the opening of the packaging is the idea that the user is agreeing to be bound by the terms of use.

“Click wrap” agreements are when users are required to indicate their agreement by clicking on an “I Agree” box. Implicit in the “click” is the idea that the user is agreeing to be bound by the terms of use.

A “browse wrap” agreement does not require the user to click an “I Agree” box, instead the mere use of the website on which it appears may lead to a finding that the user is bound by the terms of use.

Click wrap agreements are binding in Canada pursuant to case law and legislation. The difficulty in “browse wrap” agreements is that the user may not realize a website contains terms of use, and even if the user is aware of the terms of use, the user may not agree to be bound.

But being bound by agreements one has not read is not a new concept. There are a series of ticket cases where fine print on the back of a ticket or document were held to be binding, provided that it is brought to the person’s attention. It doesn’t matter if the person actually read it, provided they could have easily read it if they wanted to.

Zoocasa, a subsidiary of Rogers Communications Inc., was “scraping” online real estate listings from Century 21′s website and reposting them on its own site with additional information. Zoocasa admits it had knowledge of Century 21′s terms of use, which included a term prohibiting scraping. The court found Zoocasa’s access and use of the website following actual notice of the terms of use constituted acceptance of the terms of use. Part of the court’s decision turned on the fact that Zoocasa is a sophisticated business entity and is therefore familiar with the concept of terms of use within a website.

The court did not have to determine if Zoocasa had clear notice of the terms of use because this fact was admitted.

Given that it is common practice for websites to have links to terms of use at the bottom of its pages, it would be logical to assume that would be sufficient to constitute notice.

That we are in the midst of a huge change in the way we communicate in our work and personal lives is no revelation.  But I think many of us don’t realize how rapidly this change is happening, and the many ways it will affect us.

It is a combination of things like mobile access, handheld computing power, inexpensive apps, cloud computing, location awareness, and social media.

Consider this: mobile devices are outselling PC’s, and digital media is equal to television in importance amongst ad executives. 

The explosion of smartphones and tablets enables us to get information about almost anything immediately wherever we are.  And to provide information to others just as quickly.  Tools like Google Goggles and Siri can do that by simply taking a picture of something, or speaking into our phones. (And really, the “phone” part of our phones is dwindling in importance to the rest of their features.)

All businesses and organizations should be thinking about how this is now affecting  them, and how it will affect them in the future – both in how it will challenge their current business models, and how they can use it to their advantage. 

And don’t forget to think about who your competitors will be.  For example, who is going to own the mobile payment space?  It might be the banks and credit card companies – but it could be telcos or Google.

It also raises interesting legal issues – like who owns the movie rights to a crowdsourced story, and how do privacy rights tie in with location aware services?

The one certain thing is that we ignore this revolution at our peril.

That’s the title of my Slaw post for today.  It reads as follows.

ITBusiness.ca had a story yesterday about a Humber College professor named Tom Green who uses @tomgreen as his twitter name. Fans of comedian Tom Green have been campaigning him to give his twitter name to Tom Green the comedian, who uses @tomgreenlive.

While it is an amusing story, and professor Tom Green has every right to keep his twitter handle, there is a lesson here.

Even if you are not a social media fan, and you don’t have an immediate desire to tweet or update your facebook status, it is a good idea to at least register your name on twitter, linkedin, and facebook before someone else with a similar name does. Or before someone else who has an axe to grind with you registers it.

Anyone starting a new business, or creating a new brand should look at social media availability. The usual corporate name searches and trade-mark searches may not be enough for a business or brand that wants a social media or web presence. And let’s face it, every business or brand that has customers or deals with the public should.

So when making name and brand decisions, see if the corresponding domain names and social media names are available, and lock those down immediately. If they are not available, then you might want to reconsider the business or brand name. It costs nothing or next to nothing to do – but the cost of not doing it could be significant.

That’s the title of my Slaw post for today.  It reads as follows.

A video has come to light in which Reid Hoffman, the founder of LinkedIn, responded to a question by saying that “all these concerns about privacy tend to be old people issues”.

While it may be that some younger people may be a bit more permissive with their information than older generations, it does not mean that younger people are not concerned about privacy, or are not exercising control over their personal information.

His comment has lead to a strongly worded rebuke by Ann Cavoukian, the Ontario Privacy Commissioner.

From her article:

Here we go again. Once more, the chief of a major online social network has called into question the relevance of privacy in today’s connected world. This time it is Reid Hoffman, founder of LinkedIn, who recently said that “privacy is an ‘old people’ issue.” Really? He’s dead wrong

and

Privacy relates to freedom of choice and control over one’s own personal information – that hasn’t changed, despite the explosion of online social media. In fact, the need for privacy has grown in the face of deceptive practices online, such as identity theft and cyber bullying. Privacy has evolved, with context playing a key role. The onus is now on social media platforms to provide users with clear and simple privacy tools to enable user control.

She goes on to cite several studies that refute the notion.

That’s the title of my Slaw post for today.  It reads as follows.

One thing guaranteed to get attention and create buzz is any new Apple product unveiling – whether or not one is an Apple fanboy / fangirl. Yesterday’s was no exception. It was noteworthy in part because of the absence of Steve Jobs. But Tim Cook and other Apple executives did not disappoint.

Various products were updated, but the new iPhone 4s gets the most attention. Here is a summary from the Canoe Tech blog about the 4s and its introduction in Canada. Here is a link from the Apple site that has more detail and a couple of videos.

One thing I am mystified about is that Apple stock apparently dropped a bit after the announcement based on disappointment that they unveiled the iPhone 4s, not the iPhone 5. I get that stocks are priced on anticipation, but as far as I can tell, the only thing Apple may have done wrong was to call it 4S instead of 5.

It may look like the 4, but inside it has a faster processor, better graphics, better camera with features such as image stabilization, a world phone compatible with several cell systems, better call quality, and more. It also includes Siri, an intelligent assistant that responds to natural language voice commands. For example, if you say to the phone, “do I need an umbrella today”, it will bring up the weather forecast for your location.

The improvements are enough that anyone with earlier models, especially 3 or 3G models, will feel the “need” to upgrade.

For the London Free Press – October 3, 2011

Read this on Canoe

ONLINE: ONTARIO SUPERIOR COURT DECISION DOES NOT MEAN YOU CAN SAY WHATEVER YOU WANT WITH IMPUNITY

The Ontario Superior Court recently decided that a blog comment must pass a higher threshold before it’s considered defamatory than statements made in other places.

Defamation is the communication to third parties of a false statement that tends to injure the reputation of an individual. Slander is oral defamation. Libel is written defamation.

The reasoning in the case of Baglow v. Smith includes the thought that an ongoing blogging thread is akin to a debate. The person who felt wronged by a comment has an opportunity to reply to set the record straight and lessen the impact on his reputation of the original statement.

That makes sense if the two parties were already both involved in the online banter. But might be less applicable if the aggrieved party had not been involved in the debate prior to the comment.

Another thought was that given the nature of the online forum, readers would be less likely to interpret comments such as in this case — which suggested the person was a Taliban supporter — as being intended to be factual.

It probably didn’t help the complainant’s case that he had made some derogatory comments of his own in the comment thread. To determine if a statement is defamatory, it must be looked at in the context of the conversation or publication as a whole, and not as an isolated statement.

But this decision doesn’t mean the Internet is a defamation- free zone and that one can say whatever one wants with impunity. It just means the analysis as to whether particular comments on the Internet amount to defamation considers the nature of the medium. That makes sense, as defamation is about what the public thinks as a result of the comment.

Earlier defamation decisions about material posted on the Internet have awarded higher damage awards than if it had been published on paper. The rationale is there is a broader distribution of the comment.

So we could be in the position where a defamatory comment in an article on the Internet or in a blog post or on some form of social media might have a risk of a higher damage award — but the threshold for being considered defamatory in the first place is higher. In other words, more potential damages, but less risk of being found defamatory in the first place.

And the risk of a comment being considered defamatory might be less if discussion ensues, especially if the aggrieved party is involved in the discussions.

The bottom line — if someone makes a comment online about you that you think might affect your reputation, you should think carefully about what to do about it.

On the one hand, it might not attract enough attention to do any real harm, and the wrong reaction might just bring more attention to it. On the other hand, its online nature gives the opportunity for a measured, rational reply to set the record straight.