E-TIPS

A US District Court has ruled it unconstitutional for the state of California to require web sites to obtain a real estate broker's license in order to display property listings. The Court held in favour of New-York based ForSaleByOwner.com, a real estate services company which charges a flat fee for online listings. The company had filed a lawsuit against the state of California last year to challenge the licensing regime.

The US 6th Circuit Court of Appeals has vacated a preliminary order barring Static Control Components (SCC) from selling computer chips to third-party manufacturers making cheaper substitutes for Lexmark International Inc's (Lexmark) printer toner cartridges (Lexmark International Inc v Static Control Components Inc, DC No. 02-00571, October 26, 2004).

Frank Fowlie, formerly a senior official with the Financial Consumer Agency of Canada and an experienced conflict resolution specialist, has been appointed by the Internet Corporation of Assigned Names and Numbers (ICANN) as its Ombudsman. Mr. Fowlie will operate from his own offices but have access to ICANN's offices in Marina del Ray and Brussels.

An Ontario lower court has ruled that a man who used e-mail to disseminate statements to colleagues that imputed dishonest and reprehensible conduct on the part of an archaeologist disparaged her and her profession. In the case of Ross v Holley, [2004] OJ 4643 (Sup Ct), Justice Low noted that defamatory statements occupy a continuum ranging from those made in a bona fide (though wrongly held) belief that the statement is true to defamatory statements made knowing that they are untrue and with the express intent to bring the subject into hatred, ridicule, contempt and to destroy the subject's reputation in society.

On November 10, 2004, the European Court of Justice (ECJ) released four decisions limiting the scope of database rights under the EU Directive on the legal protection of databases (Directive 96/9/EC of the European Parliament and of the Council of March 11, 1996). The decisions represent the first interpretation of the Directive by the ECJ since its introduction in 1996. The Directive provides makers of databases with the right to prevent unauthorized acts of extraction and re-utilization of the whole or substantial part of the contents of a database. This sui generis protection is reserved, however, only for databases for which it can be shown that a substantial investment, quantitatively or qualitatively, has been made in the obtaining, verification or presentation of their contents.

Microsoft recently announced two major settlement agreements putting to rest disputes with Novell Inc and the Computer & Communications Industry Association (CCIA), a Washington-based trade group whose members include Oracle, Red Hat and Sun Microsystems. As part of the settlement agreements, Novell and the CCIA both agreed to end their participation in the European Union antitrust case against Microsoft. The CCIA also agreed to not ask the US Supreme Court to review the 2001 antitrust settlement deal with the US Justice Department. For its part, among other things, Microsoft agreed to become a member of the CCIA.

DE Technologies Inc (DE), a small Virginia-based company, has launched a patent infringement suit against Dell Inc over a patent that it claims covers all international e-commerce transactions. The business method patent, entitled "Universal Shopping Center for International Operation" (US 6,460,020), took almost six years to issue after being re-examined by the United States Patent and Trademark Office (PTO) because of the controversy generated when it was first approved.

Last week, US Congress passed a bill restricting states from taxing Internet access fees and limiting the taxation that could be applied to purchases made over the Internet, at least until 2007. The new bill is similar to a three-year moratorium on the taxation of Internet services that expired last year, with a few important changes.

Canadian federal law enforcement has partnered with law enforcement agencies in the United Kingdom, the United States and Australia to form a permanent global taskforce on cybercrime. Initially, the so-called Virtual Global Taskforce will focus on developing tactics to deter paedophiles from engaging in child sexual abuse online, but will gradually expand into other areas.

© 2004, Deeth Williams Wall LLP. All Rights Reserved. By: Jason Young, Student at Law (November 10, 2004) On October 19, 2004, British Columbia passed Bill 731 amending the Freedom of Information and Protection of Privacy Act ("the FOIPP Act")2 to restrict the disclosure of personal information outside Canada and expand the scope of personal liability and sanctions for contraventions of the Act.

On November 1, 2004, Ontario adopted new legal protections for health information which will have broad implications for patients, as well as for physicians, medical labs, hospitals, insurance companies and others who have custody or control of personal health information in the province. The new Personal Health Information Protection Act (Act, or PHIPA) imposes familiar "˜fair information practices' on the collection, use and disclosure of personal health information that are designed to safeguard the integrity and confidentiality of such information. Like most Canadian privacy laws, PHIPA also provides individuals a right of access and correction or amendment to personal health information, subject to limited exceptions. Unlike most privacy laws of general application, the Act is tailored to the health context and includes some unique provisions, including a "lock-box" clause which allows patients to instruct a health information custodian not to disclose specified personal health information to another custodian, subject to specific exceptions.

When authorities in Quebec decided to prosecute two Drummondville men who had advertised in a local newspaper the sale of satellite dishes to catch US television signals, it is unlikely that they expected Canada's entire satellite broadcast regulatory system to be challenged. In R v Thériault, a Quebec Court judge has ruled that federal restrictions on the provision of direct-to-home satellite signals are invalid because they infringed the freedom of speech provisions of the Charter of Rights and Freedoms (Charter).

On October 20, 2004, Senator Donald Oliver re-introduced anti-spam legislation to prevent unsolicited messages on the Internet. Bill S-15 (the Spam Control Act) contains the following initiatives:

On October 19, 2004, British Columbia passed Bill 73, which amends the Freedom of Information and Protection of Privacy Act (FOIPP Act) to restrict the disclosure of personal information outside Canada and expand the scope of personal liability and sanctions in the legislation. The move was in response to fears that the increased outsourcing of data processing and the management of information might subject personal information sent abroad to uses inconsistent with Canadian law.

A previous issue of E-TIPSâ„¢ (Vol 3, No 10, October 27, 2004) included an article regarding US regulatory approval of broadband Internet access over power lines (BPL). While it is too early to know whether consumers will embrace BPL for residential high speed Internet access, alternative new uses for the technology are already beginning to emerge.

Although MAGLITE brand flashlights have been on display in museums and have been won international design awards, the EU Office for Harmonisation in the Internal Market (OHIM) refused to register trade-marks for the MAGLITE flashlight design on the basis that the designs were devoid of distinctive character.

On September 29, a Judge in the Southern District of New York struck down section 505 of the USA Patriot Act which authorized the issue of special administrative subpoenas for records – including information stored electronically – held by organizations, including ISPs, banks, public libraries, and others. The subpoenas (also known as National Security Letters), said the Judge, were not subject to sufficient judicial oversight and recipients were even prohibited from revealing that they had been served with a National Security Letter.

The Ontario Superior Court of Justice recently held in Big Pond Communications v Kennedy that absolute privilege in pleadings in civil cases extends to the metadata in those pleadings, in this instance, the file path and name that appeared printed at the bottom of most pages of the plaintiff's statement of claim. Although the statement of claim itself did not allege theft – only misuse of confidential information – the plaintiff's lawyers had saved the statement of claim document in an electronic folder entitled "theft", and this was included in the pathname which appeared at the bottom of the printed document filed in court.

The Standing Senate Committee on Social Affairs, Science and Technology recently convened to review draft legislation that would change the existing rules governing ownership of copyright in commissioned photographs. Introduced on October 7th, 2004, Bill S-9 aims to eliminate what some have seen as an anomaly in the Copyright Act which has treated photographers differently from other artists.

Soon you may be able to connect to the Internet by plugging into an electrical socket. In October, the US Federal Communications Commission (FCC) introduced rules allowing power lines to be used to access the Internet. Existing power lines would carry communication signals and Internet users would be able to connect using a special modem that plugs into an electrical outlet. Although the speed would be slower than through residential fibre optic lines, it would be comparable to cable and dial-up service.