E-TIPS

A resident of Fort Frances, Ontario has become the first person convicted in Canada for obscenity on the Internet. The man was fined $100,000.00 and sentenced to three years probation for posting short films on his website that violated the obscenity provisions of Canada's Criminal Code. The fine is reportedly one of the largest penalties for obscenity in Canada.

A California District Court has issued a decision aimed at preventing consumer confusion between Nissan Motor Co., Ltd. ("Nissan Motors") and Nissan Computer Corporation ("Nissan Computers"). The Court granted a preliminary injunction preventing Nissan Computers, the owners of the nissan.com and nissan.net domain names, from using those websites to display automobile-related information, commercial advertising, or web links. In addition, the Court ordered that Nissan Computers display a prominent caption identifying those sites as affiliated with Nissan Computers and not with Nissan Motors.

In an open letter to the federal government dated November 25, 2002, the Privacy Commissioner of Canada has denounced the Canadian government's "Lawful Access" proposal that would require ISPs to develop the ability to intercept, monitor and store all wireless and Internet traffic data related to a user. The data could be ordered for retention and production by law enforcement agencies. The Commissioner suggests a four-part test to analyze the appropriateness of an encroachment of state power into the privacy of Canadians is not met by the proposal.

On November 20, 2002, the New York Mercantile Exchange (NYMEX) sued Intercontinental Exchange (ICE) for alleged infringement of copyrights held by NYMEX in the settlement prices of its natural gas and light sweet crude oil futures contracts. ICE allegedly copied the prices in establishing its own derivatives contracts.

On November 27th, using the U.S. Digital Millennium Copyright Act, Wal-Mart obtained a subpoena from the U.S. District Court (Northern District of Illinois) directing fatwallet.com to disclose the identity of an anonymous user who posted Wal-Mart's Thanksgiving advertising circular. Fatwallet.com operates a web site that allows users to post and discuss information about prices and products.

A battle in a Chinese court between the Chinese titans of Internet portals recently ended in favour of SINA.COM. The Beijing No. 2 Intermediate Court found SOHU.COM liable for infringement of its competitor's copyright by copying text and graphics downloadable from SINA.COM's website for use in mobile phones on a fee-based basis. This is the first ruling by a Chinese court applying Chinese copyright law to online materials.

In the recent case Ruby v. Canada, the Supreme Court of Canada considered whether court proceedings involving national security should happen entirely in secret. The Court considered the issue of whether the in camera (s.51(2)(a)) and ex parte (s.51(3)) hearing provisions of the Privacy Act violated the Charter.

The Network Advertising Initiative (NAI), a coalition of network advertisers based in Cleveland, recently released guidelines aimed at websites that use "web bugs" or "web beacons". These "web bugs" track a user's activity on a website. A "web bug" is often used to collect profile information which is then used for advertising and marketing purposes.

The California Supreme Court has held that the DVD industry cannot sue a Texas man in California since there is no connection between the Texan's conduct and California.

Philip Cummings, an employee at a Long Island, New York computer company, is alleged to have used passwords belonging to various financial institutions to steal personal information from over 30,000 people. Recently, it was announced that an additional 10,000 people may be victims of identity theft. Cummings and an accomplice are alleged to have sold lists of credit-card numbers for a fee of $60.00 per name.

Fifty-two year old Lisa Chen of California was recently sentenced to nine years in prison and ordered to pay restitution to Microsoft and Symantec in the amount of $11 million (U.S.). Chen is alleged to be a "major player" in an international computer software piracy organization. Three others were arrested along with Chen in November 2001.

The Privacy Commissioner of Canada (Commissioner) has released a fact sheet on "Best Practices for Recording of Customer Telephone Calls" (the "Guidelines"). The Guidelines provide guidance to businesses trying to comply with the Personal Information Protection and Electronic Documents Act (PIPEDA).

Recently, the Ontario Court of Appeal turned its attention to the issue of how Ontario libel laws apply to statements published online. The case of Weiss v. Sawyer grew out of a long running dispute over a negative book review published in an online bi-weekly publication. The writer of the book took exception to the review and wrote letters allegedly containing libelous statements regarding the reviewer. One such letter was emailed to the editors of the online publication and may have been posted on their websites.

Beginning in December 2002, foreign businesses seeking to secure their presence in China's Internet space will be able to acquire URLs with the ".CN" top-level domain name. The .CN extension is the geographical top-level domain name for China which had previously been available only to citizens and businesses within China. In an agreement between the .US registry NeuStar and the China Internet Network Information Centre ("CNNIC"), registrations for .CN will be accepted through accredited registrars located outside of China.

On November 1, 2002, the Privacy Commissioner of Canada released a statement expressing his concerns over the intrusion into privacy rights by a provision of the federal Government's Bill C-17 (Public Safety Act 2002). Section 4.82 of the Bill would provide the Canadian Security Intelligence Service (CSIS) and the Royal Canadian Mounted Police (RCMP) with access to personal information obtained by airlines about Canadian air travellers for the purpose of anti-terrorist "transportation security" and "national security" screening. The Commissioner was concerned that this provision would allow the RCMP to use information obtained to seek out those wanted on warrants for Criminal Code offences that were not related to terrorism, transportation security or national security.

The U.S. 2nd Circuit Court of Appeals upheld a lower courts decision dismissing claims brought under the Anticybersquatting Consumer Protection Act ("ACPA") for lack of in rem jurisdiction. The court ruled that: (a) section 1125(d)(2)(A) of ACPA provides that a trade-mark owner may file an in rem action against a domain name only in the judicial district in which the registrar, registry, or other domain-name authority that registered or assigned the disputed domain name is located; and, (b) section 1125(d)(2)(C), which sets out the procedure for the deposit of domain name registrar's certificates with the courts, does not provide an additional basis for in rem jurisdiction.

An Australian Internet service that allows a member of the public to view an aerial photograph of any Sydney street address has some privacy critics concerned. The images, available for a modest charge from Webmap Pty Ltd, show an aerial view of a single property and its two closest neighbours at a scale of 1:750. The images are sufficiently detailed to view positions of decks, pools, boundaries and access points. People are visible but not easily identifiable in the images. Each aerial photo in the database is updated every three years.

Can a mass-mailing computer virus become legal if it is "authorized" by a click wrap license agreement? That's the novel question raised by the FriendGreeting email, which invites email users to download an application to view an electronic greeting card. The program, which has been circulating widely around the world in recent weeks, then sends itself to email addresses in the victim's Outlook contacts file. This would be just another nuisance virus, except for a new wrinkle – the program is launched by clicking on an ordinary-looking click wrap license agreement.

The Canadian dispute resolution provider Resolution Canada has released its first ".ca" domain decision. The Registrant, a competitor to the Complainant, had registered the ".ca" version of the Complainant's domain name. The Complainant claimed that the Registrant had been using the disputed name to direct Internet users to the Registrant's website.

The working group of the World Wide Web Consortium (W3C) for the Simple Object Access Protocol (SOAP) is close to dealing with all issues which have stood in the way of completing version 1.2 of the protocol. What may be delaying the approval process are two companies who are or have been members of the XML Protocol working group. Epicentric and WebMethods have declared that they have possible patents that relate to SOAP 1.2.