Legal Issues in Casebook Ca - Assignment Example

Answers: Part 1. The situation of Michael’s Casebook.ca does raise a number of legal issues: First of all, the domain that he has chosen for his online business: “casebook.ca” resembles a lot the name of one of the most popular social networking sites – Facebook. The Domestic trademark law allows users to register domain names that resemble a specific trademark, on condition that the goods and the services provided are different, which is not the case of Michael, that not only was “inspired” by Mark Zuckerburg’s Facebook, but also provides services that are similar, if not identical to the ones that Facebook.com offers to the users. It may seem as a case of bad faith coming from Michael, who has attempted to take advantage of the good will that has been associated with the trademark of “Facebook”. According to the Federal Trademark Dilution Act of 1995 this fact may conduct to dilution.1Moreover, the U.S. Trademark Act of 1946 stipulated as illegal the action of registering or using a domain name that is identical or very similar to a trademark previously registered. Also, Michael’s “casebook” may be qualified by ACPA as “typo squatting” – the registration of domain names similar to registered trademarks, but which differ by one or two letters. This is obvious as the words “facebook” and “casebook” are similar, the only difference being the first letter. This fact would give Facebook the right to make a claim according to the URDP rules. Another important factor in Michael’s case is the geographical location of the host of his website – which is Ukraine and the location of the end-user – which is Canada. It is obvious that the location of the end-user is of a bigger importance than the location of the host, since the Copyright Act is meant to protect the copyright in Canada. Nevertheless, the location of the host is determinative and its importance should not be minimized. The fact that Michael’s help – Carrie did not provide casebook.ca with an original appearance, but copied it from facebook.com is another illegal action. In U&R Tax, a set of requirements were made in order for a reproduction to be proved. These factors are: The quality and quantity of the taken material The extent to which the defendant’s use adversely affects the plaintiff’s activities and diminishes the value of the plaintiff’s copyright Whether the material taken is the proper subject-matter of the copyright Whether the defendant intentionally appropriated the plaintiff’s work in order to save time and effort Whether the material taken is used in the same or a similar fashion as the plaintiff’s2 Analyzing the above criteria, it is obvious that the user interface design of “casebook.ca” was literally copied from the website “facebook.com” by Carrie. Through this action, the web site casebook.ca diminishes the value of Facebook’s copyright, and the material taken is used in an identical way as the facebook.com website – as a user interface design. Moreover, none of the Facebook codes were mentioned, the design and the options of this website being offered to the end-user as 100% original. It is clear that Carrie copied all the design from facebook.com in order to save time and effort and presented it to Michael as 100 % original. On the other hand, it is hard to believe that Michael actually trusted Carrie on this, considering the fact that facebook.com is a worldwide known social networking site and that Michael was inspired by this site when he started his business. It is obvious that Michael was aware of the user interface design of Facebook and Carrie’s statement that Casebook’s design was original should have sounded false to Michael from the start. Another big mistake of Michael was the fact that he accepted the advertising of Casebook that was made by his other help – Molly. She informed all the students about the website “casebook.ca” through emails and her personal blog using the following statement: “Facebook’s Zuckerburg is a thief and a weasel. Don’t give him your business. Cancel your Facebook accounts and come over to Casebook!” Not only that the website “casebook.ca” copied the domain name, the services and the user interface from facebook, but it was also advertised as the original one, blaming Facebook and his creator of illegal actions and encouraging Facebook users to cancel their accounts on that website and create new ones on Casebook. This is an illegal action of unfair competition and calumny. The fact that Molly got the email addresses from the official Dalhousie Student Directory does raise some questions, too. The students provided their email addresses as personal information. The fact that Molly simply took all the e-mail addresses from this directory may or may not be an illegal action, depending on the fact if this database is public or not. On the other hand, her email on advertising Casebook may be regarded as a spam email, or, in other words – an unsolicited commercial email. The website “casebook.ca” required that the students should provide the following information in order to register: Full name Address Social insurance number Visa/MasterCard number Password for their my.dal.ca account Favourite professor Student number Undergrad school and degree relationship status Sexual preference Whether they prefer their light beer to taste great or be less filling or both Some of the solicited information might raise some doubts regarding their legality. For example, why is the Visa/ MasterCard number asked for, if Michael decided that the website would be free of charge the first year. Or, what is the student’s password to his my.dal.ca account required for in order to register on casebook.ca? It could be regarded as an attempt to have access to the student’s personal information. Moreover, in section 3 of PIPEDA it is mentioned that: “The purpose of this Part is to establish, in an era in which technology increasingly facilitates the circulation and exchange of information, rules to govern the collection, use and disclosure of personal information in a manner that recognizes the right of privacy of individuals with respect to their personal information and the need of organizations to collect, use or disclose personal information for purposes that a reasonable person would consider appropriate in the circumstances.”3, which means that only relevant information about the user should be collected. Although in the practical application of this legal provision some problems continue to occur, it is clear that the required information about the user’s Visa/ MasterCard number or the student’s password to his my.dal.ca account is not relevant. In conclusion, Michael’s attempt to create his own online business resulted in a series of illegalities that will present some trouble in dealing with. The most serious infringements include domain name copying, content plagiarism, sending unsolicited commercial emails (spamming), calumny of a concurrent business and unfunded personal information usage. Part 2: 2. The fact that the website www.psychnews.ca required its users to provide sensitive, sometimes even embarrassing personal information may and may not be considered as a somewhat illegal action. But considering the fact that the President of Psych News Ltd is, of course, interested in protecting his company, I would advise him to appeal to PIPEDA, section 4.3 Consent. Section 4.3.7 of this Act stipulates that “Individuals can give consent in many ways. For example: (a) an application form may be used to seek consent, collect information, and inform the individual of the use that will be made of the information. By completing and signing the form, the individual is giving consent to the collection and the specified uses; (b) a checkoff box may be used to allow individuals to request that their names and addresses not be given to other organizations. Individuals who do not check the box are assumed to consent to the transfer of this information to third parties; (c) consent may be given orally when information is collected over the telephone; or (d) consent may be given at the time that individuals use a product or service.”4 This provision clearly states that the fact that a user completes and signs a specific web form means that he/she is giving the consent to the collection and the specific uses. Nevertheless, the purpose of the website itself requires personal information in order to be properly used. Section 3 of PIPEDA mentions that: “The purpose of this Part is to establish, in an era in which technology increasingly facilitates the circulation and exchange of information, rules to govern the collection, use and disclosure of personal information in a manner that recognizes the right of privacy of individuals with respect to their personal information and the need of organizations to collect, use or disclose personal information for purposes that a reasonable person would consider appropriate in the circumstances.”5 Given the fact that the website’s purpose is to present website content and news content that is of interest to users based on precise psychological profiles of users, the need to collect personal data from the users seems reasonable. If a user does not consent to giving personal sensitive information, he just does not fill in the form and, therefore, does not use the website. So, in this matter, I would advise the President not to worry. On the other hand, the further use of the registered trademark “Psych News” may present some legal difficulties. The Registration Rules impose the obligation on the applicant to ensure whether he/she has the right to use the requested domain name, without violating a third party’s intellectual rights.6 It is also the applicant’s obligation to obtain the consent of the first registrant, in case the applicant wishes to register the domain name at a different level. Nevertheless, the first registrant has the right to refuse this request, which conducts to the situation where the applicant does not have the right to register the solicited domain name. The President of “Psych News Ltd” omitted to do that, which leads to the conclusion that the domain name was illegally registered. On the other hand, the services provided by “Psych News Ltd” on their website – www.psychnews.ca differ from the services provided by the publication called “The Psych News”, a daily newsletter that provides news of interest to psychologists that operates from www.thepsychnews.com. The website www.psychnews.ca presents content and news content that is of interest to users based on precise psychological profiles of users. Considering this fact and turning to the case of Black v. Molson Canada where the Court stated that: “Simply because a domain name is identical or similar to a trademark name should not result in the transfer of the domain name to the trademark owner.  In my view, unless there is some evidence that the use of the domain name infringes on the use of the trademark name, a person other than the owner of the trademark should be able to continue to use the domain name.”7 Moreover, by law it is required that the registrar of the domain name prove his interest in this specific name. I would advise the President of the Company to demonstrate it by appealing to the purpose of the website, which is offering news to the users in compliance with their personal psychological profile. In addition to this, The Domestic Trademark Law allows users to register domain names that resemble a specific trademark, on condition that the goods and the services provided are different, which is the case of “Psych News Ltd”. In conclusion, I believe there is no legal issue that should concern “Psych News Ltd”, given the arguments above and the publication called “The Psych News” do not have any right to request “Psych News Ltd” to “cease and desist” from using the domain name www.psychnews.ca and from using any of its content (news stories and images), in any form. Part 3: 3. Laura severely violates the 10 Privacy Principles expressly stipulated in PIPEDA. These Principles are: 1. Accountability 2. Identifying Purposes 3. Consent 4. Limiting Collection 5. Limiting Use, Disclosure, and Retention 6. Accuracy 7. Safeguards 8. Openness 9. Individual Access 10. Challenging Compliance8 The first principle – Accountability – refers to the responsibility of an organisation for the personal information within its control. The word organisation also applies to an individual – a person. Laura is responsible for the information she found out through her website and she is obliged to protect it, not spread it as public information. The second principle – Identifying Purposes – refers to a legal purpose of collecting personal information. The purpose of Laura’s website is illegal from the start – that is making personal information about third parties public without their consent. In section 4.3 of PIPEDA it is specifically mentioned that “The knowledge and consent of the individual are required for the collection, use, or disclosure of personal information, except where inappropriate”9. Laura, of course, did not have the consent of the persons for the collection, use and disclosure of their personal information. The principle of Limiting collection limits the personal information that is collected. Considering that the website’s purpose itself is illegal, the fact that unlimited personal information on third parties is collected is also illegal. The fifth principle – Limiting Use, Disclosure, and Retention means that “Personal information shall not be used or disclosed for purposes other than those for which it was collected”10 which again leads to the illegal purpose of the website and, as a result, illegal disclosure of personal information. The same situation refers to violation of Principle number 6 – Accuracy. The principle called Safeguards requires that personal information should be protected in compliance with the sensitivity of the information. Considering that all the information published on Laura’s website is very sensitive and, nevertheless, accessible to everybody, there is no protection of the personal information. The Openness principle is also infringed by the simple fact that the persons on whom the information is published aren’t even aware of this fact, which also leads to the violation of the ninth principle – Individual Access. Even if the principle referring to Challenging Compliance is somehow respected by the right of the offended persons to address their claims to Laura or to the Court, their reputation has already been blemished by the personal information that was published on the website and accessible to everybody. In conclusion, I would say that Laura is in big trouble. 4. I would advise Muriel to make sure that her website satisfies the following four part test: 1. The user is informed about the existence of the proposed terms 2. The user is given the opportunity to review the terms 3. The user is expressly informed that by taking a specific action (including browsing the website) leads to the agreement of the user to the presented terms 4. The user takes such action Moreover, she should inform the consumers that the proposed terms represent a contract to which the user has the liberty to consent or refuse. By consenting to them, the user becomes part of the contract. This statement will make the users pay more attention to the terms and be aware that by accepting them, they are actually consenting to a contract. In addition, some courts consider that by clicking the “I agree” icon, the user consents to the contract and this agreement is given the force of any written contract. 5. The panhandlers are somehow right in their belief that their privacy is being invaded. Nevertheless, they should not omit the fact that they do act in a public place and therefore, the video streaming of them is just showing to other persons their actions, actions that are seen by all the people that pass on that street. There were some legal issues in the past regarding a cable company that was broadcasting the events that were taking place on a street. The Commissioner ruled that because none of the broadcasted images allowed identifying the persons on that street, the video streaming will not be considered as an illegal disclosure of personal information, so it shall not fall under the PIPEDA act. On the other hand, it is possible that the video clearly captured the faces of the panhandlers, allowing the identification of them. In addition, the fact that the video streaming of them is made accessible on a web site with a suggestive name – halifaxlosers – does conduct to the fact that they are publicly called losers by Bob, which is a public offence to their own personality. However, the PIPEDA act allows collecting, use and disclosure of personal information without consent in case it is solely for journalistic, artistic or literary purposes among other cases. But, the person who started video streaming the panhandlers is neither a journalist, nor an artist, which means that this provision will not be applicable in this case. In conclusion, given the above arguments, the panhandlers have the right to ask the shopkeeper to stop video streaming them otherwise, they have the right to request this in a Court. 6. Considering the provisions of the Internet Sales Contract Regulations made under Section 34 of the Consumer Protection Act, “a supplier shall disclose the following information to a consumer before entering into an internet sales contract with the consumer: (a) the supplier’s name and, if different, the name under which the supplier carries on business; (b) the supplier’s business address and, if different, the supplier’s mailing address; (c) the supplier’s telephone number and, if available, the supplier’s e-mail address and facsimile number; (d) a fair and accurate description of the goods or services being sold to the consumer, including any relevant technical or system specifications; (e) an itemized list of the price of the goods or services being sold to the consumer and any associated costs payable by the consumer, including taxes and shipping charges; (f) a description of any additional charge that may apply to the contract, such as customs duties and brokerage fees, the amount of which cannot reasonably be determined by the supplier; (g) the total amount of the contract, or, where the goods or services are being purchased over an indefinite period, the amount of the periodic payments under the contract; (h) the currency in which amounts owing under the contract are payable; (i) the terms, conditions and method of payment; (j) the date when the goods are to be delivered or the services are to begin; (k) the supplier’s delivery arrangements, including the identity of the shipper, the mode of transportation and the place of delivery; (l) the supplier’s cancellation, return, exchange and refund policies, if any; and (m) any other restrictions, limitations or conditions of purchase that may apply. “11 The country origin of the goods is not mentioned anywhere as information that should be provided to the customer, which means that the permit for their import is not needed to be presented to the consumer. Nevertheless, there might be some requirements coming from the Chambers of Commerce. But, the Consumer Protection Act does not require such a permit either. Part 5: 7. Considering the fact that websites are available for all the people all over the world, the possibility of a particular individual or e-commerce Company to be involved in a lawsuit in a country at thousands of kilometres away does seem real. By carrying on an online activity, available worldwide, the Canadian vendor is exposed to foreign courts. The real and substantial connection test represents a Canadian Law Principle and it is an attempt to place some limits on the circumstances in which any Court in Canada could assert jurisdiction in a matter, even though the type of connection that is needed depends on the nature of the action. Moreover, the Courts in Canada do require such a test in order to figure out if a criminal action falls under the territorial jurisdiction of Canada. In these conditions, the claimant must show if a real and substantial connection between the subject matter of the litigation or the damages suffered and the jurisdiction issuing the judgment really exists. This means that if a person wishes a certain matter to be judged by a Canadian Court, it is imperative to prove that the matter falls within the Canadian jurisdiction. This principle – the real and substantial connection test – prevents Canadian Courts from getting involved in matters of little interest to the Canadian jurisdiction. In addition to this, a court may refuse to exercise its jurisdiction in a particular matter when there is a possibility of solving it with the help of a more appropriate forum, situated elsewhere. Under these circumstances, I believe that this principle does offer an extra legal protection to the e-commerce Companies, by limiting their legal risks of being involved in lawsuits situated far away from their location. Nevertheless, such situations still continue to occur, which leads to the conclusion that the legislation in this domain requires some improvement. 8. Disregarding the fact that through the past years the industry of electronic commerce has rapidly developed, gaining more and more customers, the consumers continue to experience a percentage of reluctance when engaging in e-commerce activities. One of the main reasons for this reluctance is the consumer’s doubt that his personal information will be fairly handled by the company he engages into a contract with. This regards the way this information is collected, stored and used in the future by the online businesses. In this connection, a better defining of the privacy laws is imperative. Every citizen has the right to privacy and this right must be respected by the electronic businesses. Usually, the privacy invasions are not observed by the consumer and vulnerable persons are being taken for granted. Another area that needs to be improved is the content that is being presented to the consumers. I am speaking about offensive content and offensive conduct coming from the e-commerce companies, such as unsolicited advertisement, also known as “spam”, or the activity of hacking. Among the activities of presenting to the consumer offensive content the activity of "unknowing transport" should not be ignored. This operation occurs when an Internet Service Provider routes in a normal way and transports a big amount of Internet traffic that they are not aware of. In addition to the above mentioned, the consumers have doubts regarding the security of their transactions. In conclusion, it is clear that there are still areas that need improvement. I would suggest the Legislator to make the provisions regarding the personal data security and the respecting the right to privacy tighter, in order to minimize the cases of law disobedience. 9. First of all, sending unsolicited email advertisement should be reduced to minimum. The spam emails are still very present in everybody’s email inboxes, making the checking of your inbox an unpleasant activity. Canada is far behind other industrialized countries that have improved their laws regulating the spam emails. Another area of electronic commerce law that needs improvement refers to the practical application of Section 3 PIPEDA. This section stipulates that the personal information must be collected, used and disclosed by a company for “the purposes that a reasonable person would consider appropriate in the circumstances”12. It is unlikely that there would be a consensus between a customer and a company regarding the terms “appropriate” and “reasonable”. Privacy is a concept that still remains vaguely protected by the Canadian laws. The Canadian citizens’ right to privacy has not been clearly defined yet, remaining fragmented, uncertain and even limited. The provisions of PIPEDA regarding the consumers’ complaints and remedies are mostly focused on changing the business practises, instead of concentrating on the compensation of the individual whose rights have been infringed. The requirement of writing and signatures is another area waiting for improvement. The Personal Information Protection and Electronic Documents Act and the Regulations made for the purposes of the Act state that the President of the Treasury Board is in charge of verifying if the certification authorities are empowered with the capacity of issuing digital signature certificates that are trustworthy. In this connection, since 2000, the year when the legislation came to force, no other law has been added to the Schedule. The Act needs action coming from the federal government in order to produce effects. Another legal matter that awaits resolution from the Court regards the application of the “mailbox rule”. Section 23 of UECA stipulates on the time and place of sending and receipt of electronic documents. This provision does not mention whether the actual receipt of the document is needed in order for the acceptance to happen, or the fact that the electronic document entered into the recipient’s email inbox is enough. Read More