Case Analysis: Her Majesty The Queen v. John Robin Sharpe - Assignment Example

I. Her Majesty The Queen v. John Robin Sharpe Legal issues: This case is based on the limitation of the freedom of expression regulated by Section2 B of the Canadian Charter of Rights and Freedoms. This limitation specifically refers to the provision of the Criminal Code of Canada, Section 163 – Offences tending to corrupt the morals, which prohibit child pornography. According to Section 2, the freedoms that are guaranteed to the citizens are: freedom of expression, freedom of religion, freedom of thought, freedom of belief, freedom of peaceful assembly, and freedom of association. Nevertheless, these freedoms can be limited if it is considered necessary. The defendant possessed a big collection of videos and photographs containing nude teenage boys involved in uncensored activities. Sharpe invoked the actions of the prosecutor as a violation of his right to freedom of expression, trying to prove the in-constitutionality of the Criminal Code provisions prohibiting possession of materials containing child pornography. Sharpe made an intensive attempt to refute the prosecutor’s arguments and to prove that he is not guilty of anything. The main legal issues that have arisen in this case regarded the following: a) is the possession of child pornography protected by the right to freedom of expression? b) are the provisions of the Criminal Code of Canada somehow infringing the liberties guaranteed by the Constitution? 2. Court’s ruling: The Court was forced to face and solve a constitutional challenge, aroused by a child pornography fan, which would have formed a powerful precedent in Canadian law. The Court agreed with the defendant in one thing: the prohibition of the Criminal Code provisions did represent a limitation of the freedom of expression. Nevertheless, this limitation was necessary in a country where morality is respected and protecting children is one of the main objectives of the whole society. However, the Court decided that possession of child pornography for exclusive personal usage does not harm the child directly, so it should not be outlawed. The charges against Sharpe were dropped, except the ones referring to the photographs. Sharpe was charged with the crimes of gross indecency (article 157 Criminal Code of Canada) and indecent assault against a minor boy (article 156 Criminal Code of Canada). 3. My opinion: I believe that ownership of child pornography for private usage should be also outlawed and declared as an exception to of the freedom of expression. It is almost impossible to control if the owner uses this material for private purposes only or if he lends it to somebody else. Nevertheless, if we want to stop child pornography and really protect the children, any action referring to or involving child pornography should be outlawed and we should not let the users of such material convince us otherwise by calling up constitutional rights. 4. Questions: Should the constitutional provisions that stipulate the freedom of expression be more explicit and include an exception referring to child pornography? Was the Court right when it partially accepted Sharpe’s defence as a reason for dropping several charges against him? II. Rudder v. Microsoft 1. Legal issues: This case is an important one when dealing with Click-wrap and Click through agreements. Prior to Rudder v. Microsoft, there was little case law that referred to this type of contracts. This case dealt with forum non conviniens – inappropriate forum, a law doctrine enforcing the courts to refuse their jurisdiction over a case where there is a more appropriate court. Another legal issue of Rudder v. Microsoft referred to the improper method of informing the customers about the exclusive jurisdiction clause. The plaintiffs also argued on the fact that Microsoft had wrongly charged its customers’ credit cards, violating, by this, the contractual clauses. Moreover, in their case, the plaintiffs complained on the fact that the important clauses of the agreement did not appear on the screen. The defence argued that this is similar to a written document where the reader is supposed to turn pages in order to read the whole document. 2. The Court’s ruling: The court rejected the plaintiff’s arguments regarding the alleged poor visibility of the important clauses of the contract. The text of the contract was displayed on the screen and the reader had to manifest his agreement to it by pressing the “I agree” button. The Court also drew the attention of the plaintiffs on the fact that the website required the reader to press the agreement button twice, the second time the customer being informed that, in spite of them not reading the terms, they would still be bound to the contract if they confirmed their acceptance by pressing the button for the second time. Therefore, a user should have been more careful when agreeing to terms he has not read. Judge Winkler stated that the click wrap agreements should be treated with the same responsibility as the written, on paper, contracts. The Judge found that the plaintiffs did not have a so called strong case, Microsoft proving its important connection to the jurisdiction mentioned in the contract. 3. My opinion: I believe that this case is one of those cases which set an important case law precedent and even teach the rest of the world something. First of all, it is true that a big number of online consumers do not give the necessary credit to the online contracts, clicking I agree without even reading the text, binding this way to unknown clauses. If all of us read the clauses to which we commit, the number of claims in courts would be radically minimized, as the customer would actually have a serious attitude when entering into an online contract and be aware of what he is committing to. 4. Questions: Should the persons who post online agreements take extra measures in order to make sure that the consumers actually read the whole text of the agreement and only after having done that, they agree or reject the contract clauses? Or should the customers be extra careful and give the online contracts the deserved credit? III. Kanitz et al. v. Rogers Cable Inc 1. Legal issues: This case set one of the most important precedents in the possibility of unilateral modification of the contract clauses, as well as the usage of arbitration clauses. The defendant, Rogers Cable Inc. – a high speed internet provider, informed his customers about a change of the legal clauses of the contract by posting this information on the customer support website, as it was stipulated in the end-user contract signed by all the customers. A disagreement coming from the customer regarding the modifications should have been followed by an immediate termination of usage of Rogers’ services and notification of termination of the agreement. The Court was supposed to solve two important legal issues: if the amendment was binding and if the arbitration clause was unconscionable. 2. Court’s ruling: In spite of all five plaintiffs’ arguments, the Court held that the amendment was binding and the arbitration clause was not unconscionable. The Court responded to the two legal issues separately. First of all, it stated that the changes of the clauses were binding, since the internet provider has used a legal form of announcing the customers of the modifications and the plaintiffs’ argument that they were not informed by email was refuted by the usage of a legal means of information by the provider. It was shown in Court that as long as one authorized method of communication is applied, the informer should not be held liable for not using another method. The second legal issue regarded the possibility of the arbitration clause of being unconscionable. The Court did not find it unconscionable as there was no strong evidence that Rogers used this arbitration clause hoping to defeat any class action claim coming from the consumers. The Court set an important precedent regarding the usage of the arbitration clause in order to avoid the difficult rigours of the CPA. 3. My opinion: I believe that in this case the plaintiffs tried to apply the off-line law to the online relations. However, the Court’s decision that a contract might be amended through the posting of a website notice does not entirely fit in the rules of good faith. It is often possible that users do not always read pop-up windows and, moreover, they use special programs to block them. I believe it would have been fair to the customers to send the information about the modifications of the contract clauses on their email address, by this insuring that they actually read the content of the amendment. This way, the customer would be given a fair chance of choosing to accept or to reject the modifications and, if necessary, terminate the contract. 4. Questions: Considering the existence and frequent usage of pop-up windows blocking programs, can a contract really be unilaterally amended by simply posting a notice on a website? Can the off line laws be applied to online relations? IV. Spetch v .Netscape Communications Corp 1. Legal issues: This case focused on online privacy issues, involving supposed violations of the Computer Fraud and Abuse Act and of the Electronic Communications Privacy Act. Moreover, the plaintiff argued that he has seen the I agree button only after having already downloaded the application from the defendant’s website, as the Download button was the first on the page. The defendant reminded the arbitration clause that was mentioned in the agreement text. However, the agreement text was not fully displayed on the computer screen, the download page containing a simple link to the whole text. Nevertheless, the user had the possibility to download the application without reading, or moreover, consenting to the agreement clauses. On the other hand, the download page did contain a text mentioning that agreement to the contract can be manifested not only by clicking the acceptance button, but also by simply downloading the application. Thus, a user became bound to a clause he had never even read only by using a program. 2. Court’s ruling: The fact that Netscape obliged the user to become part of a contract by simply using the application played an important role in the Court’s decision, which has decided in favour of the plaintiffs. The decision was based on the fact that a person cannot be part of a contract he has not been aware of. The Court regarded the Licence Agreement as a non-binding contract, because of the fact that the user did not have to express any kind of consent to the agreement in order to use the application. Moreover, the Court mentioned that the link to the whole text of the agreement did not seem as an imperative one, it looked more like an invitation to view it, and not a condition to use the program. Moreover, as the plaintiffs had mentioned, the text of the agreement was not visible on the screen, as it should have, giving by this the user the opportunity to use the application without consenting or committing to anything. Therefore, the arbitration clause had been rejected and the case was to be judged by a Court. 3. My opinion: I totally support the Court’s decision in this case, as it has proven to be a fair one, taking into consideration the user’s interests. Unlike the previous case of Rudder v. Microsoft, where the court decided that the user had not given the necessary attention to the online agreement, in this case the court took into consideration the online reality, where, even if we should, we do not give enough credit to online agreements. In my opinion, the only mistake that Netscape had committed was positioning the Download button prior to the I agree button, without revealing the whole text of the agreement. Of course, if the text of the contract had been exposed on the website, requesting users to actually read it and only afterwards agree to it and proceed to using the application, Netscape would have had more chances to prove its point of view. 4. Questions: Does the fact that the website did contain a direct link to the text of the licence agreement instead of exposing it directly on the site actually excuses the users’ ignorance of reading the agreement? What would have been the Court’s decision if Netscape had specifically requested the users to read the agreement? Read More