BC Court Finds Web Site “Browse Wrap” Agreement Enforceable

In Century 21 Canada Limited Partnership v Rogers Communications Inc, 2011 BCSC 1196, Justice Punnett of the Supreme Court of British Columbia upheld the validity of so-called “browse wrap” agreements. The defendant Zoocasa Inc, a subsidiary of Rogers Communications Inc, operates a web site, http://www.zoocasa.com, that provides information on real estate properties for sale in Canada. In part, the information was obtained by scraping Century 21’s web site on a daily basis. The Century 21 site contained linked terms that purported to create a contract between a user of the site and Century 21, with the user’s use of the site constituting its acceptance of the terms. The terms were not drawn to the attention of users in any active way, and did not require any review or acknowledgment before accessing the web site. Century 21 alleged that Zoocasa breached various provisions in the terms, including those prohibiting scraping the site. Zoocasa argued that there was no acceptance of the agreement to create a consensus ad idem, and that there was a lack of consideration. The Court found that there was a sufficient acceptance of the terms, partly because the defendants were sophisticated commercial entities that employ similar terms themselves, and they had actual notice of the terms. As for the requirement for consideration, Justice Punnett found that Century 21 gave consideration by providing access to the information on its web site. (Strangely, the Court did not consider whether Zoocasa provided any consideration to Century 21, which is a requirement for the formation of a binding contract. This issue, which has been raised by various commentators regarding manufacturers’ warranties, appears to have been ignored). Zoocasa was found to have breached several terms of the agreement. It was also found that the photographs and property descriptions on the web site were protected by copyright, and that Zoocasa’s copying of these amounted to infringement. This infringement did not constitute fair dealing, which does not encompass “transformative use,” as argued by Zoocasa, as may the US “fair use” provisions. Being unable to establish damage of any substantial magnitude, Century 21 was awarded only $1,000 for breach of contract. For the copyright infringement, Zoocasa was required to pay statutory damages of only $250 per infringement, or $32,000 in total, because the infringement was apparently unintentional. Summary by: Tom Feather