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'D' Is For Disputes That Shape Our Lives

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Court Cases Affected Spam, Copyright, Music And Much More In 2003

December 15, 2003

By Michael Geist

As individuals grappled with a deluge of spam and anti-spam legislation, concerns about their personal privacy, and confusion over the application of copyright law to the online environment, 2003 was a busy year for technology law. Although activities south of the border often capture headlines, Canadian technology law developments literally ran the gamut from A to Z.

A is for, which joined the anti-spam fight in August by filing lawsuits against 11 e-mail marketers in Canadian and U.S. courts. The online giant argued that the marketers forged their e-mail addresses to appear as if messages were sent by and sought injunctions to stop the alleged forgeries as well as millions of dollars in punitive damages.

B is for Bahlieda v. Santa, an October Ontario Court of Appeal decision that overturned a controversial lower court decision which found that material placed on a Web site constitutes a "broadcast" within the meaning of Ontario's Libel and Slander Act. The court noted the case raised important issues on the broadcast definition question as well as whether repeated viewings of a Web page constitute republication.

C is for the Canadian Blood Services, which obtained a court order in November requiring Bell Canada to reveal the identity of a subscriber who sent it an e-mail claiming to be homosexual and having donated blood, a violation of CBS rules. Once the man was identified, CBS said it planned to sue him for misrepresentation.

D is for Drugs, one of the hottest online legal issues of the year. As the sales of drugs from Canadian Web sites to U.S. consumers continued to grow, the U.S. Food and Drug Administration indicated that it would seek help from the Canadian government to cut down on the sales. Meanwhile, the College of Physicians and Surgeons of Manitoba, the province's physician regulatory group, reprimanded four provincial doctors for assisting online pharmacies by countersigning prescriptions.

E is for Ecuyer v. Aeroports de Montreal, a May Federal Court decision in which the court ruled it did not have jurisdiction to address an appeal of a Canadian privacy commissioner decision. The case, itself currently under appeal, involved an employment dispute and disclosure of information to a trade union, which the court ruled fell under the exclusive jurisdiction of a labour arbitration panel under the Canadian Labour Code.

F is for the Free Trade Area of the Americas Agreement, which stirred interest from the intellectual property and Internet communities when negotiators met in Miami in November. Draft language in the FTAA opened the door to changes in Canadian copyright law, despite the fact that the issues were still the subject of considerable debate amongst Canada's copyright policymakers.

G is for Governance of the Internet, which took centre stage in Montreal in June as Canada played host to its first Internet Corporation for Assigned Names and Numbers meeting. The body is responsible for administering the domain name system. Later in the year, ICANN's position was thrown in doubt as governments around the world agreed at the World Summit on the Information Society to create a working group to examine the future of Internet governance.

H is for R. v. Hamilton, an August Alberta Court of Appeal decision that upheld the acquittal of a man charged under Canada's criminal code for sending spam that marketed documents that included bomb-making information. The court upheld a lower court's decision that the man did not have the requisite knowledge for the offence of counseling a criminal offence not committed.

I is for ISM Canada, a subsidiary of IBM Canada, which captured national headlines in January when one of its computer hard drives containing the personal information of hundreds of thousands of Canadians was stolen. The hard drive was subsequently recovered with the blame placed on a former employee of the company.

J is for Jennifer Stoddart, the former Quebec Privacy Commissioner named to the federal post in October following months of controversy at the Federal Privacy Commissioner's office (see "R" below).

K is for Fred Kyburz who was ordered by the Canadian Human Rights Tribunal to pay an Ottawa lawyer $30,000 in compensation for personal attacks made from his Web site. The lawyer, Richard Warman, sought to have the site removed from the Internet on the grounds that he believed it violated Canada's hate propaganda laws, but then became the target of personal attacks by Kyburz's Alberta-based site.

L is for the Lucy Maud Montgomery Copyright Term Extension Act, better known as Bill C-36. The bill initially envisioned extending the term of copyright for Lucy Maud Montgomery's unpublished works until 2017. The final bill shortened the term extension to 2006, but its future remains in doubt since the Senate did not pass it prior to the decision to prorogue Parliament, which effectively terminated any bills waiting to be passed.

M is for, the domain name at the heart of the Canadian Real Estate Association v. Sutton Real Estate Services case. The April Quebec court decision focused on a dispute over access and use of online real estate listings, raising issues pertaining to the enforceability of online contracts.

N is for the National ID Card debate. Denis Coderre, the then-Immigration Minister, convened a two-day summit on the issue, which was eclipsed by a Canadian Parliamentary Committee study that cautioned against the possible creation of a national identity card for Canada.

O is for Senator Dan Oliver, who introduced one of the year's two anti-spam private member's bills in September. Senator Oliver's Bill S-23 called for the creation of a no-spam list, more severe offences for sending spam, international efforts to deal with spam, and envisioned the creation of an Internet Consumer Protection Council to set standards for reducing spam. Meanwhile, MP Dan McTeague introduced a private member's bill in October that would establish anti-spam provisions in the Canadian criminal code. The bill called for a two-year prison term and/or a $250,000 fine for first time spammers with the punishment escalating to five years in jail and $500,000 fine for second time offenders. Neither bill was passed by Parliament.

P is for private copying and last week's Copyright Board of Canada landmark decision. The board determined that the levy on blank media, which is used to compensate artists and the music industry for consumers' rights to make personal, non-commercial copies of music, should be extended to MP3 players. In the process, however, the Board provided its clearest signal yet that it views peer-to-peer downloading of music as lawful in Canada under certain circumstances. The decision also opened the door to extending the levy to personal computer hard drives, an issue that will likely take centre stage when the tariff rate is revisited by the Board in 2005.

Q is for Qwest Communications, a leading U.S. telecommunications company, which removed holocaust denier Ernst Zundel's Web site from its network. Zundel, who has been found guilty of spreading hatred via the site in violation of the Canadian Human Rights Act, used a U.S.-based ISP to keep the site online. QWest removed the site after being alerted to the controversy by the Canadian Human Rights Commission.

R is for George Radwanski, Canada's former Privacy Commissioner who resigned from his position in June. Radwanski got weeks of media attention following revelations of significant travel expenditures and possible deception of a parliamentary committee.

S is for Substantially Similar Provincial Privacy Legislation. Facing a January 1, 2004 deadline, British Columbia and Alberta, stepped up and passed provincial privacy legislation by year-end. They join Quebec, whose private sector privacy legislation predates the federal law, as the only three provinces to thus far enact private sector privacy legislation.

T is for the Tariff 22 case, officially knows as SOCAN v. CAIP, heard by the Supreme Court of Canada in early December. The case attracted international attention as it raised issues of ISP liability for use of a technology known as caching to speed up network access to content as well as the prospect for ISPs to face a tariff for online music downloads.

U is for an Unknown magazine that was hit with a major privacy decision that called into question standard industry practice for obtaining subscriber consents to having personal information transferred to third parties. The decision has the potential to require Canadian magazines to include privacy choices on subscription cards. The name of the magazine subject to the decision is unknown due to the policy of the Federal Privacy Commissioner to keep the names of parties subject to privacy findings private.

V is for Voice-over-IP phone service and for Vonage, the upstart Voip provider that soon plans to enter the Canadian market. Voip caught the attention of regulators in 2003 as several U.S. states sought to treat the service much like traditional telephone providers. In late 2003, Bell Canada asked the CRTC to put the issue on the fast track in Canada.

W is for WIC v. ITV, a Federal Court case involving a dispute over the "" domain name. The case includes some interesting discussion on the use of the Internet within the Canadian court system. The court allowed the use of the Internet for performing demonstrations, cross-examining witnesses, and retrieving electronic versions of paper documents.

X is for the "x" placed on election ballots and the application of the Canada Elections Act to the Internet. In October, the British Columbia Supreme Court overturned an earlier ruling that held that a provincial resident violated the Act by posting results of the 2000 federal election on the Internet. The court ruled that the section of the Act banning the release of election results before the polls have closed across the country is unconstitutional.

Y is for Yahoo!, which found one of its discussion groups blocked by ISPs in India under order by the Indian Department of Telecommunications. The case was one of several worldwide that examined free speech on the Internet in 2003.

Z is for Zhu v. Merrill Lynch HSBC, a British Columbia court decision involving a dispute over a cancelled securities transaction. The court ruled that Merrill Lynch's disclaimers posted on its site as well as its user agreement were unenforceable.

It added that due to the nature of its services, the company owed a higher duty of care than ordinarily expected in the provision of services and that its computer system did not meet that standard.

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