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ORNEC Projects > ORNEC Research Projects - Internet and Society Cluster

Law, Ethics and Policies

1- Legal Issues in Electronic Commerce

Principal Investigator:

  • Philippa Lawson
    Executive Director and General Council at CIPPIC (Canadian Internet Policy and Public Interest Clinic)
    Faculty of Law, University of Ottawa

Co-Investigators:

  • David Fewer, Staff Council at CIPPIC (Canadian Internet Policy and Public Interest Clinic), Faculty of Law, University of Ottawa
  • New Researcher
  • Articulating Student

Private Sector Partners

  • Law Foundation of Ontario

Start and End Dates:

September 01, 2006 – August 31, 2007

Summary

This proposal is for the funding of staff resources (i.e., an additional researcher) to expand CIPPIC's research capacity on a variety of legal issues related to electronic commerce, during the period Sept.2006 to August 2007.  Specific projects we expect to be working on during this period include online contracting, online fraud, online privacy, identity theft, spam, spy-ware, and electronic banking. 

CIPPIC's research under this project would continue to be geared towards providing a public interest perspective on issues of broad concern to users of electronic commerce (both business and consumer) and to the public generally.  Priority will be given to issues on which important voices are lacking or are under-represented.

Since its inception in the fall of 2003, CIPPIC has conducted research on a variety of e-commerce-related issues, including digital copyright law reform, broadcast flag policies, online privacy, identity theft, workplace privacy, domain name governance and disputes, ICANN and CIRA WHOIS policies, online defamation and free speech, file-sharing, the impact of the USA PATRIOT Act on Canadian's privacy, lawful access, spam, spy-ware, biometrics, unfair terms in online consumer contracts, cross-border brokerage fees, and website policies.  CIPPIC has filed numerous submissions with governments, courts, and other policy-making bodies on these issues.  Examples of CIPPIC publications include:

  • Submissions to ICANN and CIRA on WHOIS database policies;
  • Submission to the B.C. Privacy Commissioner on the impact of the USA PATRIOT Act on outsourcing of data management in Canada;
  • Report to the federal Task Force on Spam (Industry Canada) on the potential for a private right of action against spammers in Canada;
  • Submissions to the Federal Court of Appeal on the privacy implications of disclosing subscriber identities in response to allegations of civil wrongdoing, and the appropriate legal test to apply to such requests;
  • Submission to Parliamentary committee on copyright and photography;
  • Paper on Consumer Surveillance and Approaches to its Regulation in Canada and the USA;
  • Background paper on ID theft for ORNEC;
  • Website FAQs and Resources on anonymity online, biometrics, copyright, defamation, domain names and domain name disputes, file-sharing, internet filtering, privacy, and spam.

For a complete listing of CIPPIC's published work, see www.cippic.ca .

2- Digital Copyright Law Reform and Electronic Commerce

Principal Investigator:

  • Philippa Lawson, Executive Director and General Council at CIPPIC (Canadian Internet Policy and Public Interest Clinic), Faculty of Law, University of Ottawa

Co-Investigators:

  • David Fewer, Staff Council at CIPPIC

Private Sector Partners

  • The Beal Fund of the Triangle Community Foundation

Start and End Dates:

July 01, 2005 – June 30, 2006 (Completed)

Summary

Canada is currently engaged in a process to reform copyright law so as to deal with the impact of new digital technologies in a way that properly balances creator and user rights, and that fosters an innovation economy.  Electronic commerce is affected in a myriad of ways by copyright laws.  Overly strong copyright laws tend, among other things, to limit access to information by the public, to restrict the ability of computer researchers to engage in certain types of research (and to develop software and technologies based on that research), and to constrain the ability of educators to use new technologies in the classroom.  Overly strong copyright laws in the USA have proven highly susceptible to abuse by corporations seeking to limit competition in for such products as printer cartridges and garage door openers.  Electronic commerce and innovation, not to mention the public interest in access to knowledge, stand to be seriously compromised by overly protective copyright laws.  It is important for the development of electronic commerce that copyright laws achieve an appropriate balance between access and protection.

The Departments of Canadian Heritage and Industry continue to consult on copyright issues.  The Departments have released an ambitious agenda for ongoing revisions to Canada’s copyright laws, with short, medium and long-term goals.  Over the past year, CIPPIC actively researched copyright issues and disseminated the fruits of that labour with a view to providing a substantive contribution to copyright policy consideration.

This project was designed to develop strong research and analysis of the public interest aspects of copyright law reform in Canada. Research covered a variety of pressing issues arising from the impact of copyright law reform on electronic commerce and specific stakeholder groups including the affected industries, public sector organizations, creators, consumers, and the public generally.  CIPPIC disseminated its research to the public in the form of white papers, fact sheets, FAQs, analyses, and/or reports on specific issues, the development of relevant website materials and functionality, and the drafting of submissions to Canadian government authorities.  For example,

  • CopyrightWatch.ca – In 2005, CIPPIC launched a blog website dedicated to publishing well-researched, factual assessments of public misinformation about copyright.
  • Election Campaign Finance – During the 2005-06 election campaign, CIPPIC released on the copyrightwatch.ca website an original study on election contributions made by the content industry to politicians with “friendly” copyright policies.  CIPPIC focused on the political contributions history and public policy positions of key candidates with close ties to content industry lobbyists. 
  • CIPPIC Website – Finally, CIPPIC has used its website to publish its research offerings and those of other coalitions and organizations.  CIPPIC’s website includes:
    • A “CIPPIC News” blog to publicize CIPPIC related activities;
    • An “Other News” blog to publicize the activities of other coalitions and organizations;
    • A Copyright FAQ, updated from time-to-time, to educate Canadians in an unbiased manner of their rights and obligations under Canada’s copyright laws;
    • A DRM FAQ, updated from time-to-time, to educate Canadians in an unbiased manner on the benefits and threats associated with DRM;
    • A file-sharing FAQ, updated from time-to-time, to educate Canadians in an unbiased manner on the legal status of file-sharing in Canada;
    • A “Bill C-60” FAQ, updated from time-to-time, to educate Canadians in an unbiased manner on Bill C-60’s implications; and
    • A Copyright Reform Project webpage, updated from time-to-time, to provide Canadians with information about the status of copyright policy debates in Canada, and to provide access to tools (letter writing tools, petitions, advocacy events, etc.) to enable democratic participation in the copyright policy process.

In addition, CIPPIC staff lawyer David Fewer published three articles over the past year stemming from its efforts on the copyright project.  These include: “The Genie in the Information Bottle” (2005) Index on Censorship 3/2005 <online:  www.eurozine.com>, “Slouching Towards WIPO:  Canada’s Reluctant Consideration of the 1996 WIPO Internet Treaties” (2006) 23(2) E-Commerce Law & Strategy 1, and “A Dangerous but Canadian Road:  The Government Proposes to Revise the Copyright Act” (2005-06) 6 I.E.C.L.C. 25.

3- Unfair Terms and Practices in Consumer eCommerce

Principal Investigator:

  • Philippa Lawson, Executive Director and General Council at CIPPIC (Canadian Internet Policy and Public Interest Clinic), Faculty of Law, University of Ottawa

Co-Investigators:

  • David Fewer, Staff Council at CIPPIC
  • Dr. Warren Thorngate, Dept of Psychology, Carleton University

Private Sector Partners

  • Deeth Williams Wall, LLP
  • Fogler Rubinoff, LLP

Start and End Dates:

April 01, 2006 – December 15, 2007

Summary

Contracts of adhesion (i.e., standard form, "take it or leave it" contracts) pose challenges to consumers.  As consumers do not get the opportunity to meaningfully negotiate the terms of such contracts, businesses often impose onerous terms.  Moreover, the online context provides businesses with opportunities to impose terms and conditions on consumers in ways that are considered by many to be unfair.  Consumer protection laws go some distance toward addressing the information and power imbalance between businesses and consumers, but case law originating with the so-called “End User License Agreement” or “EULA” – ubiquitous in the software field – has made it difficult for consumers to avoid disadvantageous terms associated with agreements for digital “products”.  This case law is being applied by the courts to a wide range of contracts that consumers may enter into online, including service agreements, purchase agreements, and other common consumer agreements. 

Recognizing the often unique consumer protection issues raised by electronic commerce, the Canadian government (Industry Canada) brought together industry and consumer representatives to develop a Code of Practice.  The Canadian Code of Practice for Consumer Protection in Electronic Commerce sets out a number of voluntary guidelines for industry, but does not address all issues arising in the e-commerce environment.  As well, Ontario passed new consumer protection legislation in 2004, which legislation sets out specific requirements for online vendors, and makes unenforceable certain unfair terms and practices that have become common in the online marketplace.  Nevertheless, significant uncertainty continues to exist as to the legality or enforceability of certain common terms and practices. 

This project will investigate common contracting terms and practices in business-to-consumer (B2C) electronic commerce that are of questionable fairness and/or legality.  It will assess the legality of these terms and practices under Ontario law, as well as under the laws of other Canadian jurisdictions (since e-commerce is usually not limited to one province).  Finally, it will test consumer practices, expectations, awareness of, and attitudes towards these terms and practices.

Research will cover a variety of pressing issues arising from consumer participation in electronic commerce, including the unilateral imposition of unfair terms and the effectiveness of online contractual adhesion mechanisms in securing consumer consent to contractual terms. To the best of our knowledge, such research has not been conducted in Canada.  Government policy-making in this area has generally been based on consumer complaints, court jurisprudence, and lobbying by stakeholders.  

Expected results include an understanding of the prevalence of certain terms and practices in certain Canadian e-marketplace sectors, as well as of the legality and acceptability of such terms and practices.  The results will provide guidance to the private sector in terms of acceptable practices, as well as to governments in terms of appropriate legal standards.

The project will involve three distinct investigations: 

1. Identifying and cataloguing corporate contracting terms and practices. 

We will analyze particular classes of terms found in consumer contracts, as well as certain contracting methods used by businesses in three specific economic sectors, namely:

  • Banking – particularly, comparing online banking agreements to offline banking agreements, and looking at both the “Big 5” and alternative banks;
  • Telecommunications – comparing local, long distance, mobile and phone contracts, and looking at ISP agreements; and
  • Software – comparing consumer software in a number of areas of importance to consumers, such as: operating systems, media players, Internet security, etc.

Typical terms that we will research include:

  • mandatory arbitration/denial of class action & choice of forum and law;
  • waiver of fair dealing rights;
  • covenant not to reverse engineer;
  • no criticism / no “disparaging”;
  • unilateral right to impose fundamental change;
  • hidden consent to unnecessary collection/use of personal information; and
  • excessive consumer liability.

Typical contracting practices that we will research include "shrink-wrap", "click-wrap", and "web-wrap" contracts. 

2. Researching and comparing relevant consumer protection legislation and case law across Canada.

We will identify, catalogue, analyze, and compare consumer protection legislation in all provinces of Canada as it applies to the terms and practices in question.  We will also review and summarize Canadian jurisprudence as it applies to the issues in question.

3. Assessing consumer behavior in entering into electronic consumer contracts.

In this phase of the project we will study consumer comprehension and behavior in entering into contracts of adhesion, and determine how comprehension and behavior can be modified by varying presentation and wording of the contracts. The fruits of this research will be published in an academic journal, will be summarized in a follow-on publication to the White Paper, and will be presented on the CIPPIC Website.

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