Tuesday, August 07, 2007

Internet Law Can Be Fun

I’m trying to convince a friend starting her legal career to specialize in Internet law. She believes that Internet law would be too much of not-so-much-fun intellectual property law.

I can see her point, as exemplified by a panel discussion I attended at Mesh last May on "The Future of Entertainment" that was hijacked, despite the moderator's best attempts, by discussions of digital rights management. And while I concede it is an important topic, it is rather dull.

An exciting bit of Internet law, however, arose last month out of a ruling by the Supreme Court of Canada.

I was stunned that the Supreme Court actually seemed to understand how websites work and that the inherent differences of the medium mean that precedence based on offline media don’t necessarily apply.

The case was against Dell computers and is more complicated than I’ll pretend to fully understand, so forgive me if I oversimplify (see this CBC article for details). The point I find very important is regarding the defendant's claim that terms of an e-commerce sale were not apparent enough as they were only accessible via a hyperlink. The Quebec Court of Appeal upheld the notion that a link from a contract to further conditions essentially was not binding as it was separate from the main contract.

The Supreme Court of Canada, however, disagreed, as the Blakes Bulletin on Information Technology summarizes the Court's ruling on this point:
The difference between clicking in order to access a clause via a hyperlink and scrolling down an Internet web-page to do the same was deemed insufficient for a finding that a clause accessible by hyperlink was external to the contract while one accessible by scrolling through the contract was not.

Though if the further terms and/or conditions were referred to, but not linked to, then it would be considered separate.

Lessons learned:
  • Website managers – make sure all applicable terms & conditions are linked to
  • Consumers – read all those terms and conditions, even if you have to scroll & click
  • Supreme Court – congratulations on understanding the web medium
  • My legal friend – see Internet law is cool and fun!

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