Laws of .com

Volume VI, Issue 15: October 4, 2008

Judge strikes down Bell late fees

Google Reneges on Anti-Abortion Ads

Elections Canada Warns Voters of Vote-Swapping

Virginia Anti-Spam Law Declared Unconstitutional

SCC Refuses Hearing on Ringtone Appeal

Proposed Legislation to Regulate Online Pharmacies

Ruling Protects Cellphone Records

Judge Denies Kentucky Attempt to Shutdown On-line Casinos

Judge strikes down Bell late fees

The Ontario Superior Court of Justice ruled that Bell Canada Inc.’s policy of charging a $25.00 “administrative fee” plus interest charges to Bell ExpressVu customers for late payment constituted a criminal rate of interest, pursuant to the Criminal Code. Mr. Justice Paul Perell, who rendered the decision, rejected Bell Canada Inc.’s argument that the charge was a result of costs incurred for collecting on overdue accounts. Justice Perell found that Bell Canada Inc.’s conduct in charging the administrative fee amounted to extending credit and charging interest, given that customers retained Bell ExpressVu services while their accounts were in arrears. The class action on behalf of 33,00 former and current Bell ExpressVu customers seeks $100 million in damages and $10 million in punitive damages. It is likely however, that the parties will attempt to reach a settlement on the issue of damages. This proceeding is in line with a growing trend in Canada to bring class action lawsuits against Canada’s telecommunications giants, challenging a variety a so-called fees, including for system-access and 911 services.

For additional information, visit:
http://www.thestar.com/Business/article/500052

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Google Reneges on Anti-Abortion Ads

An out of court settlement reached between the Christian Institute and Google has resulted in a change to Google’s policy, which now allows for anti-abortion advertisements to be shown when the keyword “abortion” is searched from the Google website. Google has couched its decision as part of a policy review and a decision to create a level playing field, provided that the anti-abortion ads are placed in a “factual” way rather than a “graphic or emotional” way. Google’s new policy on the issue will apply worldwide, and Google has made it clear that it does not take a particular side in the abortion debate.

Google was sued after it refused to accept an advertisement from the Christian Institute, a U.K. based organization that wanted its views regarding a proposed abortion law to appear on Google when users searched for the keyword “abortion.” This settlement demonstrates the fine line that large scale Internet content providers will have to walk in determining what religious or political content they are willing to allow.

For additional information, visit:
http://news.cnet.com/8301-1023_3-10044511-93.html

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Elections Canada Warns Voters of Vote-Swapping

Elections Canada has ruled that Internet “vote swapping” is legal, but warned voters about the risks of agreeing to swap votes. The vote-swapping scheme, which has appeared on Facebook, encourages voters in different areas to swap their votes in order to maximize anti-Tory votes in certain areas of the country. In particular, the scheme lists 41 areas in which tight races are expected between Tory and non-Tory candidates. The scheme now has several thousands of participants on Facebook. Elections Canada permitted the scheme to continue because encouraging people to vote a certain way is legally permitted as long as no money or other "material benefits" are involved. However, Elections Canada also warns voters to be cautious when participating into this swap. Someone may use a false identity on the Internet to trick voters into voting a particular way. Or some people may not honour their promise when casting ballots. After all, people will vote alone in the voting booths.

For additional information, visit:
http://www.cbc.ca/canada/story/2008/09/17/vote-swapping.html

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Virginia Anti-Spam Law Declared Unconstitutional

The Court of Appeals of Virginia declared the unsolicited bulk email provision of the Virginia Computer Crimes Act unconstitutional. The Court held that the statute is unconstitutionally overbroad on its face because it prohibits the anonymous transmission of all unsolicited bulk emails including those containing political, religious or other speech protected by the First Amendment to the United States Constitution.

The decision follows on an appeal by Jeremy James, who was the first to be convicted for spamming under the Virginia Computer Crimes Act. Mr. James had sent over 10,000 emails within a 24 hour period to subscribers of America Online on three separate occasions. While executing a search of James’ home, police also discovered a cache of compact discs containing over 176 million email addresses and 1.3 billion email user names.

For a copy of the decision, visit:
http://www.courts.state.va.us/opinions/opnscvwp/1062388.pdf

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SCC Refuses Hearing on Ringtone Appeal

The Supreme Court of Canada has refused to hear an appeal of the January 2008 Federal Court decision that upheld the 2006 Copyright Board tariff ruling which granted royalties to copyright holders for downloaded mobile phone ringtones. The decision not to hear the appeal means that the ruling on royalties will stand unless changed by legislative amendments to the Copyright Act.

At issue was the meaning of “communication”, with the Copyright Board and the Federal Court determining that the transmission of ringtones is a not only a communication, but a “communication to the public” that is subject to a separate copyright levy. The appellants, Bell Mobility, Telus Mobility and the Canadian Wireless Telecommunications Association unsuccessfully argued that the transmission was a private transaction and not a communication.

Following standard practice, no reasons were provided for the decision not to hear the appeal.

For additional information, visit:
http://www.cbc.ca/technology/story/2008/09/18/ringtone-supreme.html

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Proposed Legislation to Regulate Online Pharmacies

New legislation is currently being considered by the U.S. Congress to regulate the sale and distribution of prescription drugs over the Internet. The Ryan Haight Online Pharmacy Consumer Protection Act would prohibit online pharmacies from selling or distributing prescription drugs unless there was a valid prescription issued by a practitioner who has examined the patient in person at least once, subject to certain exceptions for “telemedicine practitioners”. In addition, the Act would require online pharmacies to (i) comply with the pharmacy licensing laws in each state in which they do business, (ii) report to the Attorney General on the quantity of controlled substances that they dispense each month where a certain threshold is surpassed, and (iii) provide certain information on their website, including the qualifications of the pharmacist in charge. The Act would also provide for stiffer penalties for the illegal distribution of certain controlled substances.

For more information, visit:
http://news.cnet.com/8301-13578_3-10046825-38.html

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Ruling Protects Cellphone Records

A federal court in Pennsylvania has placed strict limits on the government’s ability to obtain historical cellphone usage records. In the a drug tracking investigation, the government asked Judge Terrence McVerry of the Western District of Pennsylvania to order wireless carrier Sprint Spectrum to disclose historical cellphone data, which included call times and durations, as well as cell tower information. This information is able to pinpoint a person’s location to within 200 feet, and some commentators have observed that such information is quite personal and potentially sensitive. Previously, most federal courts had granted access to this information based on the relatively easy to meet standard of showing "specific and articulable facts" that the information is "relevant" to a criminal investigation. Judge McVerry ruled that such access requires the government to obtain a warrant by showing probable cause, i.e., a reasonable belief that a person has committed a crime.

Supporters of the decision believe that it is a significant victory in the fight to protect citizens’ privacy. Others view the decision to be wrong at law and feel that the decision is unlikely to stand up to appeal.

For more information, visit:
http://www.washingtonpost.com/wp-dyn/content/article/2008/09/11/AR2008091103292.html

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Judge Denies Kentucky Attempt to Shutdown On-line Casinos

In an effort to crack down on illegal on-line gambling in Kentucky, Governor Steve Beshear filed a law-suit seeking to force on-line gambling operators to: block users from Kentucky; pay damages; and surrender control of their domain names. On September 26, 2008, a Kentucky judge declined to order 141 on-line gambling operators to be forfeited to the State. The judge stated that he needed more time to understand the complexities of the case and to allow defense attorneys to present their case. Allegedly Kentucky has successfully blocked access to two online gambling operators; however Justice Cabinet Secretary Michael Brown contends that the sites are not inoperable as a result of the State’s actions.

This is an unprecedented attack by a State Governor on out-of-state online gambling operators and it is interesting to note that the Governor cited Kentucky’s legitimate horse racing industries as a reason to justify the lawsuit and overall crackdown on gambling web-sites.

For more information, visit:
http://www.courier-journal.com/apps/pbcs.dll/article?AID=/20080927/NEWS01/809270438

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