1. COMPETITION - McCarthy Tétrault
1. COMPETITION - McCarthy Tétrault 1. COMPETITION - McCarthy Tétrault
Sending such communication to recipients other than consumers is permissible without prior consent if the recipient is explicitly given the opportunity to object to receiving further messages (§ 107 para. 4 TKG 2003). By its clear wording, the legislature emphasized that sending commercial communication to recipients other than consumers can no longer be considered unfair competition or a violation of privacy or property. In any event, sending commercial e-mail or SMS is impermissible if the identity of the sender, on whose behalf the communication is made, is disguised or concealed, or if no valid address is provided to which the recipient may send a request that such communication cease (§ 107 para. 5 TKG 2003). According to § 109 para. 3 TKG 2003, a violation of these rules may warrant an imposable fine of up to $37,000. The question remains whether the distinction between consumers and non-consumers will assist the development of electronic commerce in Austria. However, it is evident that Austria failed to accurately implement Directive 2002/58/EC, which grants protection against the use of e-mail for the purpose of direct marketing without prior consent to each recipient that is a natural person (Art 13 para 1). The rights granted by Art 13 may not be restricted by the Member States according to Art 15 para 1 of the Directive. For more information please contact: thomas_fraiss@yahoo.de UK PERSISTENT MISUSE OF ELECTRONIC COMMUNICATIONS The Communications Act 2003 ("the Act") includes provisions aimed at empowering OFCOM to deal with behaviour which amounts to a 'persistent misuse' of an electronic communications system or network, but which falls short of constituting a criminal offence. The relevant powers of enforcement are provided to OFCOM in sections 128 & 131 of the Act. Under section 131, OFCOM is required to publish a statement outlining its general policy toward the exercise of its powers under the Act dealing with the persistent misuse of a relevant network or service. OFCOM published its policy statement in this regard on 28 August 2003. The Act defines "persistent misuse" as behaviour that has the effect, or likely effect, of causing someone to suffer annoyance, inconvenience or anxiety. The new rules are a consumer protection measure designed to protect consumers. OFTEL has stated that it considers that conduct will have the "likely effect" of causing annoyance, inconvenience or anxiety if such an effect is "probable", but not necessarily proven. In considering whether a person has "persistently" misused a network, OFTEL will look at the number, frequency and regularity of the alleged behaviour. It is not necessary that the conduct involve the same network or service on each occasion or that the same person be the target of the conduct in order for behaviour to be persistent. OFTEL has identified six general areas in which the persistent misuse of networks is most likely to occur: the misuse of automatic calling equipment to undertake short duration calls, recorded messages or fax messages without the consent of the recipient; silent or short duration calls (where the caller hangs up before the recipient has time to answer); number scanning to determine whether telephone numbers are in service or not; misuse of calling line identification (CLI) technology, such as the forwarding of misleading or inauthentic CLI information; dishonest or fraudulent activities such as directing consumers misleadingly to premium rate numbers; and misuse of allocated telephone numbers. For more information please contact: colin.long@olswang.com 4. DIGITAL SIGNATURES MEXICO NEW REGULATIONS ON ELECTRONIC SIGNATURE On 29th August 2003, the Federal Official Gazette ("Diario Oficial de la Federación") published several amendments to the Federal Commercial Code (the "Code") on electronic commerce to regulate electronic signatures. The amendments aim to give more sustenance to prior amendments of May 2000, where several provisions on Data Messages, their implications in contract formation, and their validity as courtroom evidence were incorporated into the Code, the Federal Civil Code, and the Federal Law on Consumer Protection. Critics of the May 2000 amendments claim they did not adopt all provisions of the UNCITRAL model law on Electronic Commerce. The amendments of 29th August 2003 should remedy this deficiency by establishing rules that consider the delivery and receipt of data messages and the preservation of said messages. The main principles adhered to in the new amendments are: technological neutrality, contractual freedom of the parties, international compatibility, and functional equivalence of data messages, with respect to the information contained therein and the electronic signature vis à vis the handwritten signature. While the May 2000 amendments had simply mentioned the notion of an electronic or digital signature, the new amendments elaborate on this idea by adopting the provisions of the UNICTRAL Model law on Electronic Signatures. The new amendments thus give regard to public key infrastructure models and seek to grant the same validity to electronic signatures as that afforded to handwritten signatures. Under the amendments to the Code, the electronic signature will be deemed reliable if: • the data related to the creation of the signature is exclusive of the signatory; • the data related to the creation of the signature is under the exclusive control of the signatory; • it is possible to detect any alteration on the electronic signature after its signature; and • as to the integrity of data messages, it is possible to detect any alterations thereto after signature. As was the case with the UNCITRAL Model law on Electronic Signatures, the amendments imposed a series of obligations on: • the issuer of the message; • the providers of certification services (a concept that is also adopted in this amendment); and • the recipient of the message. Among said obligations, the signatory is bound to act diligently to establish reasonable means to avoid the non-authorized use of the data related to the creation of the signature, while the recipient is bound to verify the reliability of the electronic signature or of the validity of the certificate issued to support the corresponding signature. Notary publics and private entities will be able to apply to become certification service providers before the Ministry of Economy under certain rules to be enacted by the Ministry within 90 days from the publication of the amendments. The amendments will become enforceable on that date. Among other responsibilities, certification service providers must verify the identity of any applicant and any other relevant circumstances for the ISSUE 22 SEPTEMBER – OCTOBER 2003 4
issuance of a certificate; provide to the signatory the necessary means to create and verify an electronic signature; maintain a registry of all certificates issued by it; and establish a system that will ensure the integrity of the certificates. In an effort to foster the use of electronic signatures with other countries, the Code recognizes and gives validity to certificates or electronic signatures issued in other countries, as long as such certificate or electronic signature has an equivalent degree of reliability to the certificates and electronic signatures issued in Mexico. For more information visit: www.camaradediputados.gob.mx or contact: aam@bstl.com.mx 5. DOMAIN NAMES FINLAND NEW ACT ON FINNISH DOMAIN NAMES Finland's new Act on Domain Names ("Act")entered into force on 1 September 2003. On the day the new act entered into effect, the Finnish Communications Regulatory Authority (FICORA) received over 18,000 domain name applications for ".fi" top level domain names. By September 18th, FICORA had received more than 26,000 applications. Before the new act, only some 42,000 Internet names had been registered in Finland. Under the new Act applicants have greater freedom of choice in choosing domain names because, previously, Internet names had to correspond to the name of their business, organization or to trademarks and registration of common names or acronyms was forbidden. Certain restrictions still apply under the new Act. For instance, an Internet name cannot be indecent. It is also forbidden to register domain names that violate someone else's protected mark or name. Applicants for an Internet name are responsible for the legality of names they apply for. Furthermore registration of personal names remains prohibited and private individuals still may not register Finnish domain names unless they are private entrepreneurs. Foreign companies may apply for domain names if they have a branch entered in the Finnish Trade Register. Internet names may not be registered for the purpose of resale. One case has already been instituted by FICORA against a potential domain name squatter. Under the new Act FICORA can deregister unlawfully registered Internet names. For more information visit: http://www.ficora.fi/englanti/index.html or contact: craig.thompson@roschier.com 6. ELECTRONIC COMMERCE CANADA ENFORCEABILITY OF WEBWRAP AGREEMENTS In "Canadian Real Estate Association (the "CREA") v. Sutton (Québec) Real Estate Services Inc.", Montreal, 500-05-074815-026, 10th April 2003, the Quebec Superior Court granted an interlocutory injunction against Sutton, ordering Sutton to cease downloading listings from the www.mls.ca website for the purpose of reposting the information on its own website. The Court found that Sutton's actions violated the "terms of use" agreement as posted on the mls.ca website. Such terms were subject to a webwrap approach to online contract formation rather than a clickwrap approach. While Sutton argued that it was not bound by CREA's terms of use because it had not clicked on an "I Agree" button, or had not otherwise manifested its consent, the Court held that CREA had an apparent right in the integrity of its website, and it granted the interlocutory injunction. This ruling's significance involves its place among other rare Canadian decisions that address the enforceability of webwrap terms of use agreements. The Court granted an interlocutory injunction here even though it held that the enforceability of the website terms of use should be determined on final judgment. The Court appears to have been influenced by the fact that Sutton "knew what it was doing". Further, despite there having been no clickwrap, the Court found evidence that Sutton knew that it was subject to CREA's terms of use by the fact that Sutton had posted its own "terms of use" agreement using a webwrap approach on its own website. The Court agreed that CREA had made a sufficient case of owning proprietary rights in its website listings, irrespective of the fact that such listings were posted by various third parties, including Sutton. The decision is also a relatively rare Canadian instance of judicial consideration and treatment of Internet technology, where the Court discusses Sutton's technological attempts ("stealthing") to sidestep CREA's technological attempts to block Sutton's ability to download and repost the MLS listings on its own website. For more information visit: http://www.canlii.org/qc/jug/qccs/2003/2003qccs11838.html or contact: cmorgan@mtl.mccarthy.ca 7. FINANCIAL SERVICES LUX NEW LAW FOSTERING IT OUTSOURCING IN THE FINANCIAL SECTOR Outsourcing, or the use of third party provider, is a business strategy that is being considered more and more by financial institutions as they face increasing competition. Indeed, financial institutions view outsourcing as a valuable tool that enables them to focus on their core competencies while reducing their operating costs. Against this background, the Luxembourg Government has decided to foster the development of outsourcing services in the finical sector and, to this end, the Parliament adopted on 2nd August 2003 the Act No 5085 (the "New Law") amending the law of 5th April 1993 on the financial sector. The New Law entered into force on 1st October 2003. The main purpose of the New Law is to create new categories of professionals of the financial sector (the "PFS") subject to strict requirements (including, for example, professional secrecy) and to the permanent supervision of the financial sector regulatory authority, the "Commission de Surveillance du Secteur Financier". One such new category of PFS covers "IT systems and communication networks operators of the financial sector" (the "EDP Operator"). Thus, EDP Operators are defined by the New Law as professionals responsible for the functioning of computer systems and communication networks of financial institutions, PFS, undertakings for collective investment (the "UCI") or pension funds. The scope of services which may be offered by EDP Operators includes data processing or data transfer as well as computer systems implementation and maintenance. However, pursuant to the New Law, ISSUE 22 SEPTEMBER – OCTOBER 2003 5
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issuance of a certificate; provide to the signatory the necessary means to<br />
create and verify an electronic signature; maintain a registry of all<br />
certificates issued by it; and establish a system that will ensure the integrity<br />
of the certificates. In an effort to foster the use of electronic signatures with<br />
other countries, the Code recognizes and gives validity to certificates or<br />
electronic signatures issued in other countries, as long as such certificate<br />
or electronic signature has an equivalent degree of reliability to the<br />
certificates and electronic signatures issued in Mexico.<br />
For more information visit: www.camaradediputados.gob.mx<br />
or contact: aam@bstl.com.mx<br />
5. DOMAIN NAMES<br />
FINLAND<br />
NEW ACT ON FINNISH DOMAIN NAMES<br />
Finland's new Act on Domain Names ("Act")entered into force on 1<br />
September 2003. On the day the new act entered into effect, the Finnish<br />
Communications Regulatory Authority (FICORA) received over 18,000<br />
domain name applications for ".fi" top level domain names. By September<br />
18th, FICORA had received more than 26,000 applications. Before the<br />
new act, only some 42,000 Internet names had been registered in Finland.<br />
Under the new Act applicants have greater freedom of choice in choosing<br />
domain names because, previously, Internet names had to correspond to<br />
the name of their business, organization or to trademarks and registration<br />
of common names or acronyms was forbidden. Certain restrictions still<br />
apply under the new Act. For instance, an Internet name cannot be<br />
indecent. It is also forbidden to register domain names that violate<br />
someone else's protected mark or name. Applicants for an Internet name<br />
are responsible for the legality of names they apply for. Furthermore<br />
registration of personal names remains prohibited and private individuals<br />
still may not register Finnish domain names unless they are private<br />
entrepreneurs. Foreign companies may apply for domain names if they<br />
have a branch entered in the Finnish Trade Register.<br />
Internet names may not be registered for the purpose of resale. One case<br />
has already been instituted by FICORA against a potential domain name<br />
squatter. Under the new Act FICORA can deregister unlawfully registered<br />
Internet names.<br />
For more information visit: http://www.ficora.fi/englanti/index.html<br />
or contact: craig.thompson@roschier.com<br />
6. ELECTRONIC COMMERCE<br />
CANADA<br />
ENFORCEABILITY OF WEBWRAP AGREEMENTS<br />
In "Canadian Real Estate Association (the "CREA") v. Sutton (Québec)<br />
Real Estate Services Inc.", Montreal, 500-05-074815-026, 10th April 2003,<br />
the Quebec Superior Court granted an interlocutory injunction against<br />
Sutton, ordering Sutton to cease downloading listings from the www.mls.ca<br />
website for the purpose of reposting the information on its own website.<br />
The Court found that Sutton's actions violated the "terms of use"<br />
agreement as posted on the mls.ca website. Such terms were subject to a<br />
webwrap approach to online contract formation rather than a clickwrap<br />
approach. While Sutton argued that it was not bound by CREA's terms of<br />
use because it had not clicked on an "I Agree" button, or had not otherwise<br />
manifested its consent, the Court held that CREA had an apparent right in<br />
the integrity of its website, and it granted the interlocutory injunction.<br />
This ruling's significance involves its place among other rare Canadian<br />
decisions that address the enforceability of webwrap terms of use<br />
agreements. The Court granted an interlocutory injunction here even<br />
though it held that the enforceability of the website terms of use should be<br />
determined on final judgment. The Court appears to have been influenced<br />
by the fact that Sutton "knew what it was doing". Further, despite there<br />
having been no clickwrap, the Court found evidence that Sutton knew that<br />
it was subject to CREA's terms of use by the fact that Sutton had posted its<br />
own "terms of use" agreement using a webwrap approach on its own<br />
website. The Court agreed that CREA had made a sufficient case of<br />
owning proprietary rights in its website listings, irrespective of the fact that<br />
such listings were posted by various third parties, including Sutton.<br />
The decision is also a relatively rare Canadian instance of judicial<br />
consideration and treatment of Internet technology, where the Court<br />
discusses Sutton's technological attempts ("stealthing") to sidestep CREA's<br />
technological attempts to block Sutton's ability to download and repost the<br />
MLS listings on its own website.<br />
For more information visit:<br />
http://www.canlii.org/qc/jug/qccs/2003/2003qccs11838.html<br />
or contact: cmorgan@mtl.mccarthy.ca<br />
7. FINANCIAL SERVICES<br />
LUX<br />
NEW LAW FOSTERING IT OUTSOURCING<br />
IN THE FINANCIAL SECTOR<br />
Outsourcing, or the use of third party provider, is a business strategy that is<br />
being considered more and more by financial institutions as they face<br />
increasing competition. Indeed, financial institutions view outsourcing as a<br />
valuable tool that enables them to focus on their core competencies while<br />
reducing their operating costs.<br />
Against this background, the Luxembourg Government has decided to<br />
foster the development of outsourcing services in the finical sector and, to<br />
this end, the Parliament adopted on 2nd August 2003 the Act No 5085 (the<br />
"New Law") amending the law of 5th April 1993 on the financial sector. The<br />
New Law entered into force on 1st October 2003.<br />
The main purpose of the New Law is to create new categories of<br />
professionals of the financial sector (the "PFS") subject to strict<br />
requirements (including, for example, professional secrecy) and to the<br />
permanent supervision of the financial sector regulatory authority, the<br />
"Commission de Surveillance du Secteur Financier".<br />
One such new category of PFS covers "IT systems and communication<br />
networks operators of the financial sector" (the "EDP Operator").<br />
Thus, EDP Operators are defined by the New Law as professionals<br />
responsible for the functioning of computer systems and communication<br />
networks of financial institutions, PFS, undertakings for collective<br />
investment (the "UCI") or pension funds.<br />
The scope of services which may be offered by EDP Operators includes<br />
data processing or data transfer as well as computer systems<br />
implementation and maintenance. However, pursuant to the New Law,<br />
ISSUE 22 SEPTEMBER – OCTOBER 2003 5
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