Canadian courts have made two new rulings today that affect the very fabric of the web. One was perfectly reasonable, but the other absolutely bone-headed.
Leave it up to the Canadian justice system to take a generally well functioning and well behaved honour system, and turn it into a unworkable cesspool of red-tape. A couple of frivolous lawsuits have threatened to do just that to the Internet, and fundamentally break the web.
1.Court upholds ruling against libel by linking
First, the sane ruling. In summary, you can't get sued for simply posting a link. In the court case notes, you can read a key statement we agree with completely “A hyperlink, by itself, should never be seen as 'publication' of the content to which it refers [...] the actual creator or poster of the defamatory words in the secondary material is the person who is publishing the libel.”
When presented with this scenario, even the ditziest teenager would say: “Well yeah, duh...”. Okay, so crisis averted, right?
2.“Click here” is the new “Sign here”
Not so fast, there is more lunacy on the horizon. In brief: a Rogers owned company created a lousy scraper site that completely ripped off Century 21's content. This was blatant copyright theft, so this should be an open and shut case. Well apparently the lawyers for the plaintiff felt the copyright infringement case was weak and decided to pile on with a reference to their “terms and conditions page”.
Cue the inevitable moment where the higher court completely shuts-out common sense under the pretext of balanced and enlightened decision rendering. Yes, that's right, the court has ruled that the policy page you never read, never agreed to explicitly, and probably never even knew existed (since it was in an 8 point micro-font at the footer of the website) is legally binding.
Now don't get me wrong. I have no issue with the company wanting to protect their intellectual property. But there are potent laws in the books already for that. I also wouldn't have any issue with them using a click-wrap style agreement where we had an opportunity to make a conscious decision. But forcing a interpretation of the law that now auto-magically ropes every visitor into a contract is not only despicable, it's dangerous.
Are we going to need a browser extension that stops us from going to entrapment sites now? Or maybe one that strips them out of the page, would it still be legal then? Or maybe Google going to start identify web links that contain legal agreements, much like they do with malware sites. “WARNING: You are about the enter a site that with a horribly unfair TOS policy. Do you want to continue? (not recommended)”.
You know what, who cares? I'm going to take advantage of this right now before everyone wises up. Montreal is a fantastic city, but it's been growing a lot slower than cities in Western Canada lately, so here's my way of pitching in. I'm sorry to report that you are now legally obligated to move to Montreal.
Terms of service for this website:
BY VISITING THIS WEBSITE, YOU HEREBY AGREE TO MOVE TO MONTREAL, CANADA THIS WINTER.
You'll love this city! Don't worry about the occasionally harsh weather, we more than make up for it with culture and entertainment. What do you mean you don't want to move to Montreal? What do you mean this is ridiculous? Too bad, you clicked the link.
You'll be hearing from a lawyer shortly.