There is a growing trend for places like restaurants and retail stores to provide free wifi access for customers.  Its easy to set up – just plug a wifi router in to your internet modem, right?  Not quite.  It is important to set it up and maintain it so it is properly protected by a firewall, and is not connected to your internal systems.  You don’t want customers or internet malfeasors to be able to get access to, or compromise your internal systems and the information it contains – such as customer credit card information.

Storefrontbacktalk has a good article that details the risks, and what steps to take to avoid it.

For the London Free Press – June 7, 2010

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Ontario court says website operators can’t always be ordered to disclose the identity of posters accused of defamation.

On May 3, 2010, an Ontario Divisional Court appeal decision addressed the issue of whether a web site operator should be required to produce information that could identify individuals who posted allegedly defamatory comments on that website.

The decision made clear that Canadian courts will order the release of information to identify anonymous posters – but only if certain tests are met first.

In Warman v. Wilkins-Fournier, the plaintiff sued Frank Fournier and Constance Wilkins-Fournier, the owners and operators of the freedominion.ca website plus eight John Does. At issue were allegedly defamatory comments posted on that site, and whether the defendants had to disclose information about the anonymous posters so the plaintiff could sue them.

To determine the identity of these individuals, Warman brought a motion before the Ontario Superior Court asking the court to require the Fourniers to provide information about the individuals’ e-mail addresses, personal information used during registration, IP addresses and documents relating to the establishment and ongoing operation of the website.

Justice Kershman was of the opinion that the plaintiff need not show anything to compel the defendants to disclose.

“In fact, the obligation is on the Defendants to disclose”, stated Kershman.

The Fourniers appealed that decision and argued those who use forums do so with the expectation that their comments will be kept anonymous.

The Canadian Civil Liberties Association and the University of Ottawa’s Canadian Internet Policy and Public Interest Clinic intervened. Both argued the court should not order disclosure unless public interest favouring disclosure outweighs freedom of expression and privacy concerns.

The Ontario Divisional Court parted with Kershman and decided the release of identifying information is not automatic.

The court relied on the Sony BMG v. Doe case, where the Canadian Recording Industry Association tried to get the names of online music file sharers. After taking into account five factors cited in that case, the Ontario Divisional Court unanimously held that although the motions judge was alert to the need to take the privacy interests of the unknown alleged wrongdoers into account, the need to consider the interest in freedom of expression was not raised by the parties or considered by the motions judge.

The court ruled judges must consider the following factors whether information on anonymous posters should be revealed in defamation cases:

• Whether the unknown alleged wrongdoer could have a reasonable expectation of anonymity in the particular circumstances;
• Whether the plaintiff has established a case against the unknown alleged wrongdoer and is acting in good faith;
• Whether the plaintiff has taken reasonable steps to identify the anonymous party and has been unable to do so; and
• Whether the public interest favouring disclosure outweigh the legitimate interests of freedom of expression and right to privacy of the persons sought to be identified if the disclosure is ordered.

The Court allowed the appeal and sent it back for re-consideration.

For the London Free Press – May 31, 2010

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You’ll have to act fast to protect your brand

The country of Colombia is making its .co domain names available to those with no connection to the South American country. 

Typically, country level domains (such as .ca in Canada) can only be obtained by people within that country, or having some connection to the country. 

However, the Colombian government has recognized that the letters “co” are recognized the world over to mean company and/or corporation and has decided to cash in. 

Colombia is not the first country to do this. 

Anyone can pick up a .to domain name (Tonga) or a .cc domain name (Cocos Islands). A big success story is .tv, which brings a big annual income to the small island nation of Tuvalu. 

It is expected that first-time domain purchasers or those who have had to settle for sub-par domain names in the past will be first customers in line for .co. 

So how do you go about getting a .co domain name? 

The plan starts with a comprehensive “sunrise” period for trademark holders, a “landrush” period for those interested in names of high commercial value and finally “general availability.” 

Global sunrise began on April 23 and continues through June 10. Trademark holders within valid jurisdictions can apply for exact match domain names. 

To apply for a domain name during sunrise, you need to submit evidence of ownership of a trademark of national effect from any country in the world. In other words, if you have a Canadian trademark for “widget”, and it is not already taken, you can get widget.co in priority to others. 

Landrush will be held from June 21 through July 10. Anyone can apply for a domain name during this time. Single applications will be awarded at the end of the landrush and matching applications will be resolved at auction. 

Finally, general availability will begin on July 20 on a first-come, first-served basis. 

Details are at http://www.cointernet.co/. 

The operators of .co are advertising strong rights protections for brand owners. More specifically, .co will implement many of the rights protection mechanisms proposed by ICANN’s implementation recommendation team to safeguard the rights of brand owners around the world. 

Some of the key rights protection mechanisms and other protections announced by the .co registry include: 

• An IP clearinghouse to help brand owners secure their brands in .co during the sunrise process in an efficient and effective manner. 
• A policy to rapidly take down domains in cases where phishing, pharming, malware or other significant criminal and/or security threats have been established, including serial cyber-squatting. 
• A list of specially protected marks offering added protection to leading brands that the global consulting firm of Deloitte has independently identified as having made significant efforts to protect and enforce their trademarks in the domain name space. 

It would be worthwhile considering whether a .co domain name might be useful for your business. If so, take advantage of the process to attempt to obtain it before someone else does.

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

The Canadian government announced a consultation on the future of Canada’s digital economy at the Canada 3.0 conference this week. I encourage readers to add their thoughts to the consultation process – which is open for the next 60 days.

It is summarized as:

Digital technologies are critical to every aspect of our economy and society. That is why a strategy for the digital economy is needed to ensure that Canada is positioned to benefit from the opportunities that it presents.

All Canadians have a role to play in helping shape Canada’s digital future. Your perspectives, suggestions, ideas and submissions will be important inputs in the creation of our digital strategy. We appreciate your interest and participation.

This consultation, and the main message of the Canada 3.0 conference, is about building a digital media strategy for Canada so that by our 150th anniversary in 2017 everyone in Canada will be digitally connected. That’s both in the sense of connectivity, and how we use digital tools and media to work, learn, play, communicate,and manage our health.  The organizers are calling this the “Moonshot”.

The sentiment is that while Canada used to be a digital leader, we are falling behind.  And that the future of our country and economy depends on the aggressive adoption of new technology

Of course, this is an issue that is easy to state – but not so easy to do something about.  Questions include the roles of government vs business.  And differences in attitude and perspective of old vs new media. 

Some thoughts about the conference and this issue from a couple of people I know that were there are here and here.

For the London Free Press – April 5, 2010

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Court upholds judge’s decision a hyperlink to defamatory material doesn’t make the person posting the link liable for defamation

The British Columbia Court of Appeal decision in Crookes vs. Newton dealt with the issue of whether posting hyperlinks on one’s own website that link to defamatory content on other websites can trigger defamation liability.

Jon Newton, the defendant, owns and operates the p2pnet website. He posted an article on July 18, 2006, with hyperlinks to websites that contained articles defaming the plaintiff, Wayne Crookes, a Vancouver businessperson, president and sole shareholder of West Coast Title Search Ltd., and a volunteer for the Green Party of Canada.

Crookes and his lawyer asked Newton to remove the hyperlinks. Newton refused. It was Crookes’s position that Newton was a publisher of the impugned articles found at the hyperlinked websites. Newton was of the view there was no need to remove them because they were “merely a hyperlink.”

In October 2008, the judge dismissed the action against Newton for damages on the basis that Crookes had failed to prove publication of the alleged hyperlinked defamatory material.

That order was appealed to the B.C. Court of Appeal. That court confirmed the mere fact that a person may include a hyperlink on his own website linking to another site does not make that person publisher of the content of the hyperlinked site. And if that person is not the publisher, he is not liable for any defamation on the linked site.

The court set out two aspects to the publication element in defamation cases: the first, concerning “the act of promulgating the impugned item,” and the second relating to “the receipt of that item by a person within the court’s jurisdiction.”

On the first point, the court noted there was a barrier between the article and the hyperlinked websites that had to be bridged by the reader. The court of appeal’s view was in such a situation, the reader leaves the original article and enters a different, and independent, website.

The majority disagreed with the minority finding that Newton’s article served “as words of encouragement, or an invitation” to browsers. Instead, the court agreed with the judge’s reasons that “the circumstances of a case may add more so as to demonstrate a particular hyperlink is an invitation or encouragement to view the impugned site, or adoption of all or a portion of its contents.”

On the second point, the court acknowledged there may be cases where more information is available to support an inference that a person in the court’s jurisdiction got access to the impugned articles by clicking on them. But that information was not available in this case.

The appeal court ultimately upheld the judge’s decision, ruling that a mere hyperlink to defamatory material does not make the person posting the hyperlink liable for defamation.

But if the linking website endorses the material or encourages the browser to go to the hyperlinked website, the linking website may be held liable because that might constitute publication.

UPDATE:  After this article went to press, the Supreme Court of Canada announced that it will hear an appeal of this case – so stay tuned to see if the Supreme Court has different thoughts or confirms this decision.

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

The quality of Canadian internet access continues to decline in comparison to that of other countries.  See, for example, previous Slaw posts here and here.   This while high speed access is more increasingly considered crucial for the economy,  competitiveness and innovation – even to the extent that many feel that the internet is a fundamental human right.  

The Canadian government talked about a digital strategy in its recent throne speech, but so far we don’t know what that translates to.

Contrast that with what is happening in the US.   The US FCC just announced an aggressive plan to upgrade internet access and speed.  The FCC says “Like electricity a century ago, broadband is a foundation for economic growth, job creation, global competitiveness and a better way of life.”

And Google plans to build trial locations to bring fiber to the home in at least 1 US city with speeds of 1 gigabit per second.  (That’s over 200 times faster than we get at home now.)   Google draws parallels to the space race.

University of Waterloo president David Johnston is quoted in a CBC article saying:   

For the London Free Press – September 21, 2009

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ONLINE ACCOUNTABILITY: It does not shield against civil or criminal wrongdoing

At its inception, the Internet was thought to be an unregulated medium. Online anonymity ensured that Net users could publish anything they desired without fear of repercussions.

But over time, courts have replied with an growing list of legal precedents limiting the anonymity of individuals who engage in unlawful behaviour online.

The issue came to the forefront recently with a decision of the New York State Supreme Court, which ordered Google and its Blogger.com subsidiary to release the name of the blogger who posted defaming comments directed at model Liskula Cohen.

The blog, entitled Skanks of NYC, posted malicious comments about Cohen’s appearance and other aspects of her personal life. Cohen wanted to sue to seek personal damages for defamation, but the identity of the blogger was unknown. Cohen brought an action to obtain the identity of the anonymous blogger from Google.

The blogger attempted to argue that the statements were hyperbole, which in the United States, at least, is protected speech and not actionable. They also contended that Internet blogs serve as a “modern day forum” for conveying personal opinions and that in this context any writings cannot be viewed as “factual assertions.”

In ordering the release of the blogger’s identity, the court held that “protection of the right to communicate anonymously must be balanced against the need to assure that those persons who choose to abuse the opportunities presented by this medium can be made to answer for such transgressions.”

Though the ruling received considerable media attention, the decision was not novel. In Canada, there have been numerous instances where courts have required Internet service providers to release the identity of an individual if evidence can be produced that the accused has committed illegal or actionable behaviour.

For example, in the Ontario case of Irwin Toy v. Doe in 2000, the court recognized some protection of online anonymity, finding the release of identity “should not be automatic upon the issuance of the statement of claim.”

The court noted both safety and public policy grounds for protecting the privacy of Internet users. In this case, the plaintiff was able to show grounds for a defamation case and the request was granted.

In cases where child pornography or other serious crimes are alleged, the decision to release personal information is relatively straightforward. The right of the offender to privacy is outweighed by the societal interest in preventing this behaviour.

In civil actions or lesser criminal matters, courts appear inclined to afford some degree of anonymity to the user unless a prima facie case can be argued for disclosure. In doing so, courts appear to recognize anonymity as an important right if not abused.

Individuals may find it both helpful and rewarding to post messages and seek advice about a variety of personal topics without fear of having their identity connected with their writings.

The anonymity offered by the Internet does not, however, serve as a shield against accountability for civil or criminal wrongdoing.

I received an email yesterday from the publisher of the Shelly Palmer blog pointing out a post entitled Senator Ted “Tubes” Stevens Indictment is Appropriate Metaphor for U.S. Communication Power Shift .  It uses Senator Ted “Tubes” Steven’s famous remarks to focus on the question of how tech savvy our political leaders are.  As the post points out, its scary that “Tubes” is the Vice Chairman of the Senate Committee on Commerce, Science, and Transportation and a member of the Subcommittee on Science, Technology, and Innovation. 

The post states:

Taken together, I started to wonder how would our current presidential candidates describe the Internet and its associated technology? Do they have a firm grasp on the issues surrounding our telecommunications future? Do they know what the technical limitations of the medium are? Is either candidate ready to lead us past the information age into the age of cloud computing, reduction mapping and explosive data?

The context of the post is the US presidential election – but its something we in Canada and indeed every country should ask ourselves.  To take it one step farther, we should ask if in addition to the technical issues, our elected officials understand the related social issues, and the expectations and understanding of a younger generation that has grown up knowing nothing but the Internet and the tools and opportunities it brings.

While Stevens’ “Tubes” remarks refers to pipes, the equivalent electronic metaphor might be vacuum tube politicians in a microchip age.

For example, there are many things in recent Canadian copyright bills that suggest the answer to those questions is no – and that no seems to be accross party lines.

Its all kind of scary if you ask me.

For the London Free Press – July 14, 2008

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For 16 days in November 2004, customers of Inform Cycle Ltd. were shocked and embarrassed to find unexpected content on what they believed to be Inform Cycle’s website.

Inform Cycle’s actual site was at informcycle.ca. A month prior, a disgruntled former employee of Inform Cycle had purchased the domain name InformCycle.com. He had hoped this “.ca” to “.com” variation would be enough to wreak havoc with Inform Cycle’s customers and owners.

The former employee, now employed with a competitor, initially set up the Web domain to redirect users to his current employer’s website.

On Nov. 7, 2004, the former employee changed the forwarding address for InformCycle.com to a pornographic website. He then left for vacation in Costa Rica.

In a decision by the Alberta Court of Queen’s Bench released last month, the former employee was ordered to pay Inform Cycle $15,000, including aggravated and punitive damages.

Inform Cycle brought the action against its former employee citing the torts of passing off and defamation.

Passing off is about a misrepresentation that creates a public belief that the party at risk was associated with the action. It’s essentially a form of trade-mark infringement, usually found in cases in which a business leads customers to believe they are selling a better-known competitor’s product.

In this case, through his actions, the former employee tried to make it appear as though Inform Cycle was supporting a porn website. Obviously, the owners of the company were upset by being associated with this content. Without being able to disclose any financial evidence of direct loss of sales, the judge put this loss at $5,000.

Inform Cycle also argued that the former employee’s actions were a defamation of the company’s character. The decision states that the worldwide extent of the defamation over the Internet and the absence of any public apology on the part of the former employee exacerbated the company’s loss.

Though a company does not have a character in the general sense, it nonetheless has a reputation which the court felt deserving of compensation. This loss was put at a further $5,000.

Lastly, the court considered aggravated and punitive damages. Though a corporation can endure defamation of character, it is unable to suffer mental distress or hurt feelings and consequently cannot be compensated for aggravated damages. However, the malicious and oppressive conduct of this defendant so offended the “court’s sense of decency” that the judge awarded punitive damages of $5,000. It was an important deterrent to ensure such a grievous action was not replicated.

The courts recognize that the use of the Internet as a tool for committing such torts has the potential for wider damage than print media. With the assistance of the Internet and e-mail, damage to a character can potentially reach millions within seconds

Slaw has a post that has a quote from a just released Supreme Court of Canada case where the decision refers to blogging.  The context is a libel case where the judge talks about the “astounding quantity and variety of commentaries on issues of public interest, ranging from political debate in the House of Commons, to newspaper editorials, to comedians’ satire, to a high school student’s blog.”

I’m going to write an article that comments on this and ties it into the Streisand effect, but for now:

take a look at the Slaw post