OVERVIEW OF TOPICS TO BE DISCUSSED
A. Introduction
B. Commentary
(1) Territorial Jurisdiction; "Whose Laws Decide?"
(2) Intellectual Property Laws
(3) Domain Name Difficulties
(4) Civil Actions on the Internet
(5) Criminal Actions on the Internet
C. Conclusion
(a) more and more charities are turning to the internet as a way of reaching potential donors;
(b) Despite popular belief to the contrary, the Internet is not lawless. It is governed by all of the
same laws which affect us in our daily lives.
Maintaining a web site can expose a charity to a variety of criminal and civil sanctions if it is not
careful.
The following are a number of areas of concern for charity web site owners:
1. Territorial Jurisdiction; "Whose Laws Decide?"
The Internet is international in nature;
What a charity posts on its web site can be viewed anywhere in the world;
What a charity posts on its web site may expose it to the laws of potentially any other jurisdiction anywhere else in the world; and
- eg. Charitable Fund-Raising Act of Alberta
Issue of which jurisdiction is applicable and is relevant at present - the high degree of uncertainty
in determining the applicable jurisdiction should lead to wariness for charity web site owners.
commercial transactions;
civil and criminal liability;
2. Intellectual Property Laws
All intellectual property laws are applicable to the Internet including copyright and trade-mark law;
Unauthorized use of material created by someone else, may expose a charity to an action for
copyright infringement.
Copyright
ensure you own your website;
obtain necessary assignments, licenses for content;
obtain assignments of purchasing website;
obtain waiver of moral rights from artists, creators of website;
use of website may lead to copyright infringement;
framing
hyperlinking
vicarious infringement
damages and civil/criminal actions;
defence to copyright infringement;
Trade-mark
domain name confusion;
posting trade-marks or website;
hyper-linking;
meta-tags;
dilution (in cause of action);
passing off;
Obtaining necessary releases and licenses important for web site owners to reduce the chances of
litigation.
3. Domain Name Difficulties
Area of contention and uncertainty at present;
If the domain name is the trade-mark of another then a church or charity may expose itself to an
action for trade-mark infringement;
At the same time, taking appropriate steps to secure its domain name is highly recommended to
churches and charities.
If a church or charity fails to act, it may find itself having to purchase its domain name from
someone who had the prescience to register it first;
Privacy Issues
growing concern on the Internet;
legislation:
federal
provincial
international
sanctions for inappropriate collection of personal information;
common law torts relating to privacy
misappropriate of personality;
false association;
unreasonable intrusion into person's private affairs.
4. Civil Actions on the Internet
Include defamation (libel and slander), interference with economic interests, passing-off, trade-secrets and breach of confidence, and negligence;
Defamation can occur easily on the Internet. E-mails can not be considered as privileged or
private communication. Bulletin Boards and Chat Rooms allow the disenchanted to defame
others;
Charity web site owners should carefully review anything posted to their sites, or they may find
themselves publishing defamatory material;
Use of a web site to criticize the business practices, wares or services of others can lead to actions
for interference with economic interests if such use leads to contracts being breached;
Passing-off can occur if a web site is used to promote goods or services in the name of another,
or if the web site is designed to prosper from the goodwill of another organization or individual;
Trade-secrets can be passed easily over the Internet, and breaches of confidence can easily occur
through inappropriate use of e-mail, or improper security measures;
Negligence can include statements posted on a web site which are relied upon by others to their
detriment, in situations where it would be expected that such reliance would occur or failing to
update information pooled on a website;
Some recommendations to reduce problems:
1. Vicarious liability of employers for actions of employees - limit employee access to the web site;
2. Limit access to the web site to invited guests;
3. Regularly monitor what is posted on your web site;
4. Use security measures; and
5. Use disclaimers;
5. Criminal Actions on the Internet
Criminal law is applicable to the Internet;
Issues of jurisdiction important for criminal law - area of uncertainty;
Includes illegal speech, criminal libel and gaming;
Illegal speech involves s.319 of the Criminal Code;
Illegal speech includes: "Every one who, by communicating statements in any public place, incites
hatred against any identifiable group where such incitement is likely to lead to a breach of the
peace" and "every one who, by communicating statements other than in private conversation,
wilfully promotes hatred against any identifiable group" is guilty of an offense;
Criminal libel is defined as "a matter published, without lawful justification or excuse, that is
likely to injure the reputation of any person by exposing him to hatred, contempt or ridicule, or
that is designed to insult the person or, or concerning whom it is published";
Gaming and betting is regulated through numerous applicable sections in the Criminal Code;
Generally, gaming is prohibited unless regulated by a provincial government, while section 207(4)
(c) basically requires that any lottery scheme using a computer be operated by a provincial
government;
Issues of jurisdiction significant when dealing with gaming;
Michigan statement on jurisdiction over Internet - indicates that Michigan will try individuals under
Michigan law is offer gambling over the Internet to Michigan residents; and
The same recommendations as outlined in the section dealing with civil law issues apply with
respect to criminal law issues.
Some easy rules of thumb:
1. Firstly, don't use what is isn't yours, or attempt to gain benefit from the work of others
without first obtaining their permission;
2. Secondly, ensure that you use your web site in a civil manner, always with an eye to how
others will receive what you have to say;
3. Remember to maintain control over how your web site is being operated;
4. Ensure that only a limited and trusted number of employees have access to what is placed on
your web site;
5. Maintain confidentiality of information obtained and used; and
6. Operate your web site with an eye to the effect that it will have throughout the world, and not
just in Canada or the United States.
DISCLAIMER: This summary of Legal Issues in Fundraising on the Internet is distributed with the understanding that it does not constitute legal advice or establishing the solicitor/client relationship by way of any information contained herein. The contents are intended for general information purposes only and under no circumstances can be relied upon for legal decision making without first consulting with a lawyer and obtaining a written opinion concerning the specifics of your particular situation.
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E-Mail: mwhite@wardlaw.on.ca
Web Site: www.wardlaw.on.ca