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

PBS has a new 13 minute video called High Fiber that looks at broadband in the Netherlands and Britain, and compares it to the US. The differences are striking.

In Canada, we have controversies over usage based billing, and the costs of both basic internet services and fees for going over the monthly limit. And various surveys put us on a downward path in international rankings for various broadband metrics. This recent OECD survey, for example.

The video shows that in the Netherlands and Britain more fiber is being installed (including to the home), competition is increasing, speeds are increasing, and costs are decreasing.

Affordable high speed internet access is crucial to our future economy. We somehow need to reverse the downward trend.

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

There has been a firestorm of protest recently over the issue of usage based billing for internet access. 

It is widely recognized that the future of Canada is digital.  This concept has broad government and community support.  This future depends on cost-effective, easy access to the internet. 

Anything that inhibits internet access and use (either wired or wireless), such as the usage based billing we are now seeing, is counterproductive, and a step back to the stone age.  We can’t afford to have have an environment where existing or prospective businesses or consumers have any hesitation to use the tools that are available now, or to innovate and experiment for the future.

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

The anti-spam bill – Bill C-28 – was recently passed, and is expected to be in force sometime later this year.

If you think it won’t affect you because you don’t send mass emails trying to sell random products, and don’t infest other people’s computers with spyware, you would be wrong.

It applies to the sending of commercial electronic messages that many of us would not consider to be spam.  An email to just one person that you consider a potential customer or client who you met at an event may fall into the prohibitions.  And it applies to other forms of electronic communications, such as instant messages, and various kinds of social media.

It can also apply to software updates in certain circumstances.

So while the intention is to control what we all understand as spam and spyware, it has the potential to affect many things that we may not intuitively consider spam or spyware.  Similar to privacy legislation, this Act will no doubt lead to situations where our first reaction is to label it spam or spyware if we receive it, but not consider the same thing spam or spyware if we send it.

There are details that will be covered in yet to be drafted regulations.  Personally, I would like to see some kind of volume threshold where it is deemed not to be spam if it’s a targeted message sent to a small number of individuals.

Until we see the regulations, it is going to be hard to give specific advice to a typical business or organization as to what they must do to comply.  Many things that could potentially affect a typical business fit threshold situations that might result in a different answer depending on the regulations.  The penalties are significant, so it’s not legislation to be taken lightly.  Remedies include fines of up to $1,000,000 for individuals, $10,000,000 for others, and private rights of action.

Some things are “reviewable conduct”, meaning that it is subject to the investigatory and order making powers of the Privacy or Competition Commissioners.

The act is long and complex, and includes amendments to four existing acts – the CRTC Act, Competition Act, PIPEDA, and Telecommunications Act.

Directors and officers can be personally liable if they authorized or acquiesced in the offence.  Employers are vicariously liable for the actions of their employees acting within the scope of their authority.

While we await the regulations, here are some things to ponder for those who don’t consider themselves spammers.

The act starts with a broad definition of “commercial electronic message”, and says that you can’t send them unless it fits within a specific exemption.  One of the keys will be to figure out what the boundaries are of “commercial activity”.

“Electronic message” is broadly defined to include a message to email, instant message, phone, or “any similar account”.  That could include things like a twitter direct message – but I would think not a general tweet to people who choose to follow you.

In some circumstances you can send the message, but must include accurate information about the sender, and a way to opt out of future messages.

It is not spam if the recipient consented to receive the message.  The Act has extensive provisions defining what amounts to explicit or implicit consent.  It includes things we might expect, such as on ongoing business, personal or family relationship – some of which have two year windows.  Also exempted are messages to those who publish their address or have provided you with their address – so long as the message is relevant.  I suspect that means that since my email address is published on our firm web site and other places, you will be able to email me with anything relevant to the practice of law – but you won’t be able to email me trying to sell me a trip.

Or if I hand you my business card, the same applies.

It is up to the sender to show that they have consent if there is a complaint.  So will we need to track that to be safe, i.e. somehow track that you got my address from our web site, or the card I handed you?

Directors and officers personal liability will be tempered if they can show diligence.  Since almost everyone in an organization routinely sends email, tweets, etc., organizations may want to set up policies and training programs to educate employees and reduce potential corporate, director and officer liability.

Exemptions for an “existing non-business relationship” includes donations, volunteer work, or memberships – with a two year window.  Charities will need to review these provisions carefully, as they will affect how they approach prospective donors and volunteers.

One example to think about is a press release.  Those sending a press release will need to think about the purpose of the release, and who is on the email list.  Is it being sent beyond traditional news services?  Does the fact that a recipient has published their email address on their firm’s website mean that they can or cannot get the release depending on the content of the release?  Does the fact, for example, that my email address is listed on my newspaper column mean I can be sent emails that could not be sent if my address was only on our firm web site?  Does it make a difference that I may be listed somewhere on a list of journalists because I write a newspaper column?  Are bloggers considered the same as journalists?  Does it make a difference if my address is disclosed on various social media platforms, such as Facebook, LinkedIn, Twitter, or .tel?  

Am I restricted from sending personalized individual emails to a handful of influential people active on social media who I hope will spread whatever message I want to get out?  Am I going to have to analyse each recipient to see how close or distant a connection they have under the exemptions, or how their email address has been published?

Will the answer be different if I send it to them as direct message on twitter, rather than by email?

How will senders possibly track all this, or find the time to do so?

Those creating and selling software will need to consider how this affects them.  The Act adopts the broad definitions of “computer program” and “computer system” from the criminal code.  It thus applies to any electronic instructions that execute to perform a function, on any device capable of executing them.  That would include phones and tablets.  And since almost everything includes some kind of computing power these days – might some of these provisions affect things such as PVR’s or cars?

The Act has provisions that affect software that collects personal information.  Certain functions will require specific permission, such as anything that changes or interferes with settings, interferes with a user’s control, or causes it to communicate with another computer.  Consider, for example, how that might apply to software that is licensed for a specific term that automatically stops working at the end, or allows the vendor to cripple it for non-payment.

Software vendors may have to amend their EULA’s to comply.  And some circumstances will require specific permission with full disclosure before the change can be made, regardless of the contents of a EULA.  So software vendors will have to think through how their software works, how the Act might come into play, and what permissions are required. 

Another thought for software vendors is whether changing from a traditional installed software model to a hosted SAAS or cloud model will avoid some of these issues.

Stay tuned for more as the regulations are drafted and we come to grips with the ramifications.  There will no doubt be a lot written about this over the next few months, as well as educational opportunities.

For the London Free Press – December 6, 2010

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When advertising your product on the Internet, using the name of a competitor can sometimes increase awareness of your own product. It’s even legal.

Recent decisions from British Columbia and Quebec have held that “keyword advertising” using the trademark or name of a competitor is a legal advertising practice. These decisions follow a similar trend in other jurisdictions.

Keyword advertising is a form of online advertising linked to specific words or phrases. Advertisers pay search engines, such as Google, for links to their websites to appear as “sponsored links” alongside the search engine’s normal search results.

The advertiser creates an ad which specifies certain keywords, then sets a maximum price they are willing to pay to use them. When a user searches using one of the keywords, the search engine checks to see which ad is most relevant and has placed the highest bid for the keyword.

These ads are then displayed as “sponsored links” on the search results.

If the user clicks on a sponsored link, the advertiser is charged according to its bid.

Advertisers sometimes specify trademarks or names of competitors as keywords. Such ads can sometimes outrank the ad of the competitor.

In Private Career Training Institutions Agency versus Vancouver Career College (Burnaby) Inc., the Agency sought an injunction against VCC to stop it from using competitors’ business names in its keyword advertising.

The Agency got complaints from member institutions. Students searching for other institutions clicked on sponsored ads for VCC, thinking the ads were for the college for which they were searching. Some even enrolled at VCC before realizing it was not the institution they had intended on attending.

The agency alleged that VCC’s use of keyword advertising was false, deceptive or misleading advertising designed to lead students seeking information about another institution towards its own.

The court refused to grant an injunction, finding that using keyword advertising was no different than the traditional marketing practice of locating an advertisement close to a competitor’s.

VCC’s actions were not found to have deceived consumers. Rather, the actions of individual consumers who clicked on the sponsored ads, or even enrolled at the schools, resulted from their own imprudence. VCC did not hold itself out to be anything other than it was.

The Quebec Superior Court dealt with a similar situation involving a chocolate company, Humeur Groupe, which purchased keywords of competitors for advertising on Google. In this case, Humeur specifically stated in its ads that it was an alternative to its competitor, Chocolate Lamontagne.

Despite the fact that Chocolate Lamontagne attributed a loss in sales of $112,000 to Humeur’s ad campaign, the court refused to grant an injunction. Information providing an alternative to a particular business cannot be prohibited. Rather, competition must take into account new ways of interfacing with consumers. The court referred again to the fact that individual consumers are freely choosing to access the alternative site.

It remains to be seen whether keyword advertising is contrary to the Trademarks Act, as the issue was not argued in either case.

We get upset when governments outside of North America insist on being able to monitor internet based communications.   But we shouldn’t get too smug about it, as the same thing happens in North America.  See these posts that talk about a new attempt to legislate backdoor internet access in the US, why its a problem, and links to other commentary.  CircleID       Techdirt

The three strikes concept just won’t go away either.  Basically it allows or requires sites or internet access to be shut down based on unproven allegations they are used for infringement.  A new proposed US bill would do that.  See the CircleID link above for their take on that.

Mike Masnick of Techdirt puts that bill in perspective by saying that the same logic used by the proponents of the bill would have in the past banned Hollywood itself, the recording industry, radio, the DVR, and other ubiquitous things.

UPDATE: Also see the EFF take on the backdoor bill.

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.