Law and the Internet

The INTERNET is a communications network that interconnects various computer networks by way of telecommunications. The nature of Internet technology makes it difficult for the law to regulate Internet users and information that is transmitted on the Internet.

The INTERNET is a communications network that interconnects various computer networks by way of telecommunications. The nature of Internet technology makes it difficult for the law to regulate Internet users and information that is transmitted on the Internet.

In Canada, a number of Internet-related issues fit within the framework of existing statutes such as the CRIMINAL CODE, the COPYRIGHT Act and the TRADEMARKS Act.

The Criminal Code
The Criminal Code contains a number of offences that conceivably could apply to conduct on the Internet. For example, Section 163 makes it an offence to publish or distribute obscene material and child pornography. Sections 296-304 prohibit the publication of libellous material. Libel is intentionally false publication that is injurious to the reputation of another. Computer virus dissemination is a crime under Section 430, which prohibits the wilful interference with computer data. Section 319 prohibits the incitement of hatred and Section 21 prohibits the dissemination of information that counsels the commission of an offence such as suicide assistance and bomb recipes. In an Internet context, determining who has "published" or "distributed" the material on the Internet is a critical issue and sometimes difficult to determine.

Nature of Communications

The nature of communications over the Internet threatens the security of information found on the Internet, as well as the privacy of Internet users. Communications between electronic mail users are routed through a series of computer networks, and thus are susceptible to interception by anyone with a computer system along the route. Section 184 of the Criminal Code makes it an offence to wilfully intercept a "private communication" by means of "any electromagnetic, acoustic, mechanical or other device." An Ontario Court of Appeal decision makes it unclear whether an electronic mail message is a "communication" on the grounds that a communication does not encompass the delivery of information to an electronic device in the context of telephone communications. However, Section 8 of the CANADIAN CHARTER OF RIGHTS AND FREEDOMS, which enshrines an individual's rights to be secure against unreasonable search or seizure, has been interpreted by the Supreme Court of Canada to include the right to protection of personal information as one element of the right to privacy. However, no case in Canada has yet determined the scope of the right to privacy and to security of information over the Internet.

The Copyright Act sets out a variety of rights that belong to the copyright holder, including the right to prevent others from copying the whole or a substantial part of one's work. The use or exploitation of someone else's copyright material on the Internet, whether by uploading, downloading or arguably even by browsing, without that person's permission, is a copyright infringement punishable by civil and criminal remedies including damages, seizure or forfeiture, injunction, delivery up and imprisonment. Some limited ability to use copyright material without authorization is currently provided for in the Copyright Act if the copyrighted work is used for the purposes of study, research, criticism, review or newspaper summary and the source of the work and the author's name are mentioned.

Trademark Issues

The Trade Marks Act and the common law action of passing off allow owners to protect their trademarks from infringement and appropriation. A trademark is a word or symbol which acts to identify a product or service so as to differentiate it from other products or services provided by others. Early cases in the US have found that trademark infringement can occur and be enjoined on the Internet. There is no reason to believe that similar principles do not apply in Canada.

Trademark issues also apply to domain names on the Internet. A domain name is the name assigned to the address of an Internet Service Provider or an Internet user. For example, the Canadian Broadcasting Corporation has the Internet domain "cbc.ca."

Companies who do not register their domain names as trademarks or who do not register their key trademarks as domain names risk having another company use their trademark as a domain name. In a recent case, the former employee of an Internet Service Provider entered the same business and obtained a domain name similar to his former employer's corporate name. The court held that the use of the domain name did not amount to a passing off because there was little possibility of confusion between the 2 names. No court in Canada has specifically addressed the issue of the scope of trademark protection afforded to Internet domain names.

Global Nature of the Internet

The global nature of the Internet creates difficulties in determining which country's laws govern activity on the Internet. The principle of territoriality dictates that the application of statues and regulations of a jurisdiction is generally limited to persons, property and events within the territorial boundaries of the jurisdiction. No Canadian case has yet canvassed the issue of conflict of laws on the Internet.


Further Reading

  • David Vaver, Intellectual Property Law, 2d ed. (2011); George Takach, Computer Law, 2d ed. (2003); David Potts, Cyberlibel: Information Warfare in the 21st Century? (2011).