Laws of .com

Volume VII, Issue 1: January 15, 2009

Ontario Court of Appeal Upholds $40,000 Web Defamation Award

Russian Entrepreneur Trademarks “;-)”

eMusic.com Loses CIRA Domain Name Claim for eMusic.ca

Privacy Commissioner Finds Privacy Risks in Administrative Decisions

Australian Court Permits Court Documents to be Served via Facebook

Facebook Firing Sparks Debate Over “Cyber Sacking”

Ontario Court of Appeal Upholds $40,000 Web Defamation Award

In December 2008, the Ontario Court of Appeal upheld a trial court award of $30,000, in addition to legal costs of $10,000, against Paul Fromm, a notorious Canadian neo-Nazi leader and activist. The trial judge had found that Mr. Fromm had made defamatory statements against Richard Warman, an Ottawa-based lawyer active in human rights law, and that such statements were not protected by the defence of fair comment since malice was exhibited. The Canadian common law defence of fair comment seeks to protect statements on matters of public interest (excluding gossip), that are a fair and honest expression of the author's opinion, based on known and provable facts, and with no actual, underlying malice. Following the Court of Appeal ruling, Mr. Fromm sought assistance from supporters to cover the $40,000 judgment, as well as to finance a possible appeal to the Supreme Court of Canada.

For a copy of the Ontario Court of Appeal decision, visit:
http://www.canlii.org/en/on/onca/doc/2008/2008onca842/2008onca842.pdf

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Russian Entrepreneur Trademarks “;-)”

Oleg Teterin has recently obtained a Russian trademark for the winking/smiling emoticon “;-)”. Mr. Tetrin, the President of the cellular phone company Superfone has indicated that the trademark is directed at corporate users, and that individuals will not be pursued for using the mark.

Superfone will allow other companies to use its trademark, but indicates that licenses to do so will cost “tens of thousands of dollars”. Mr. Tetrin also indicates that his company may argue that similar emoticons that resemble the one he has trademarked could also fall under the rights granted by the trademark. There has been no word as to whether Superfone will attempt to register the mark outside of Russia.

For additional information, visit:
http://www.guardian.co.uk/technology/2008/dec/12/intellectualproperty-internet

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eMusic.com Loses CIRA Domain Name Claim for eMusic.ca

A panel of the Canadian Internet Regulation Authority (CIRA) considered a dispute between eMusic.com Inc. (Complainant), a New York based online downloading company and Mogul Arts Inc. (Registrant), a company that carries on business in Ottawa, over the domain name emusic.ca registered in 2001. The Complainant requested that the CIRA panel order the Registrant to transfer emusic.ca to it in accordance with the CIRA Dispute Resolution Policy.

The Complainant’s request failed as the CIRA panel found that the Complainant could not prove that the domain name was registered in bad faith. In particular, in examining the criteria under paragraph 3.7(b) of the Policy, the panel found that the Registrant: (i) refused an offer to sell the domain name to the Complainant and stated that the domain name was not for sale; (ii) did not register the domain name to block trademark rights of the Complainant as at the time of registration of the domain name the Complainant was not as well-known as at the time of the dispute and the Registrant could legitimately have ignored its existence; and (iii) there was no evidence that the Registrant had intended to disrupt the Complainant’s business, given that the eMusic trademark was not registered at the time the Registrant registered the domain name, the expression was generic and the Registrant was not a competitor of the Complainant.

For a copy of the CIRA dispute resolution panel decision, see:
http://www.cira.ca/en/dpr-decisions/00115-emusic.ca.pdf

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Privacy Commissioner Finds Privacy Risks in Administrative Decisions

In her December 2008 Annual Report to Parliament, the Privacy Commissioner of Canada expressed concern over the disclosure of personal information on websites hosted by administrative and quasi-judicial bodies. These bodies are established by Parliament to consider issues such as denial of pension and employment insurance benefits, compliance with employment and professional standards, and allegations of regulatory violations. These decisions are typically made available on the Internet. The Commissioner found that many of the reported decisions of these bodies contain intimate details of people’s lives, including their financial status, health, job performance and personal history. She concluded that individuals whose personal information is contained in these decisions face a substantial risk of embarrassment, ridicule, identity theft, discrimination and harassment, and that the risk of having such information made public would deter people from asserting their rights.

The Commissioner acknowledged that making these decisions available on the Internet fulfilled the “open court” principle that public scrutiny of the decision-making process is necessary to promote its integrity and fairness. However, her position is that respect for the open court principle did not require the disclosure of the identity of the individuals involved in a given decision. The Commissioner therefore recommended several measures for administrative and quasi-judicial bodies to adopt, including that all decisions should be depersonalized, either through the use of randomly assigned initials in place of individuals’ names or by posting only a summary of the decision with no identifying personal information. The Commissioner stated that some administrative bodies were willing to adopt these recommendations, while others were reticent; given this inconsistency, she pointed to the necessity for a new government-wide policy on this privacy issue.

For additional information, visit:
http://www.privcom.gc.ca/information/ar/200708/200708_pa_e.asp#005

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Australian Court Permits Court Documents to be Served via Facebook

An Australian court has approved what is believed to be the first instance of the service of legal documents via Facebook. A Master of the Supreme Court of the Australian Capital Territory ordered that a default judgment could be validly served by sending a message by computer to the Facebook pages of both defendants informing them of the entry and terms of the judgment. Although service is normally effected by personal delivery or mailing, Australian courts have also permitted service via email and text messaging. Service via Facebook is the Australian court’s latest move to embrace technological advancements.

For additional information, visit:
http://www.smh.com.au/news/technology/web/australian-court-serves-documents-via-facebook/2008/12/12/1228585107578.html

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Facebook Firing Sparks Debate Over “Cyber Sacking”

An esthetician, Crystal Bell, was fired via an email sent through Facebook in late November 2008, sparking an ethical debate over what employers owe their employees in times when electronic communication has become the norm.

Ms. Bell was also hired via Facebook, and she had only been on the job for two weeks when she was terminated, allegedly for failing to show up for a staff meeting on her day off. Her supervisor defended the Facebook firing, claiming that she tried to contact Ms. Bell after she failed to appear at the staff meeting, but was unable to reach her.

This raises the question of whether cyber sacking is merely a modern equivalent of a letter of termination, or whether there are any legal concerns with respect to letting employees go using this means of communication. In 1997, the Supreme Court of Canada established that a firing, if done in a cavalier way, can result in “bad faith” damages in addition to normal severance pay. The ruling from over a decade ago does not contemplate the possibility of termination via electronic means. In the U.S., Radio Shack sparked a similar debate online and in newspaper editorials when it notified four hundred of its employees via email that they were being dismissed two years ago. While Ms. Bell’s circumstances may differ given that she had only been employed for two weeks, the question remains as to whether firing via electronic means would be considered to be cavalier resulting in “bad faith” damages in addition to normal severance pay in Canada.

For additional information, visit:
http://www.canada.com/calgaryherald/news/story.html?id=a627fa6e-8eca-4a84-8c82-45a693d4473d

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