Law Times

Page 8 September 28, 2015 • Law timeS www.lawtimesnews.com Questions raised about Pan Am link restriction Situation a reminder about terms of use imposed by web sites BY YAMRI TADDESE Law Times his past summer, in the midst of Pan Am Games festivities in Toronto, a small controversy broke out on social media that sparked interesting questions around in- tellectual property law. Social media users had caught wind of a curious statement in the terms of use of the Pan Am web site: a ban on linking to it without express permission. An amended version of the terms of use later stated: "The use of or embedding of content from this site is not permitted except with the written consent of TO2015." The intention behind the orig- inal terms of use, if there was ever one, was likely to control the use of the Pan Am brand or to guard against so-called "ambush mar- keting," says Catherine Lovrics, a trademarks and copyright lawyer at Bereskin & Parr LLP. "With major sports events like the Pan Am Games and the Olympics, their business model is effectively to have exclusive sponsorships in certain product categories," says Lovrics. "If [the original terms of use] was deliberate, the intention was likely to control unofficial sponsors from trying to affili- ate themselves to the Games in a way that jeopardizes the value of official sponsorships." It's unlikely the Pan Am Games or similar web sites would worry about personal, non-commercial uses of their links, such as a sports fan sharing a link to the results page, Lovrics notes. But the ban on links also brought up an interesting ques- tion: Could the organization enforce it in court? Generally, from a legal per- spective, Canadian courts have found web site terms and condi- tions of use are enforceable, says Lovrics. In June, for example, the British Columbia Court of Ap- peal enforced a condition in Facebook's terms of use that re- quired litigants to bring claims against the social media giant in Santa Clara, Calif. In that case, Douez v. Facebook Inc., a lower court had found Santa Clara to be forum non conveniens. But Lovrics still has her ques- tions about the Pan Am situa- tion. "I think there's a question of whether or not that particular term would be enforceable," she says. Although there are a few Canadian cases that hint that the courts won't uphold overly aggressive terms of use, there are a number of cases that go the other way, she notes. "So that's really a live ques- tion. I think from a public pol- icy perspective, linking is really the way the Internet works. It's the backbone of the Internet. It's how you make informa- tion available, and I think there would be reasonable arguments that the term should not be en- forceable." Toronto-based Internet law- yer Gil Zvulony says whether someone could enforce a condi- tion like that would depend on the web site. "It may be enforce- able on one web site whereas on another web site it would not be. It depends on the structure of the web site," he says. Some web sites, Zvulony notes, always redirect new visi- tors to the homepage, where the terms would appear on the screen and they'd have to click "agree" to proceed. "If it's in a situation like that where there's no other way to get to the web site rather than the front door, so to speak, and a new visitor has to explic- itly agree to the terms, then you have, in the online world, a pret- ty strong agreement, I'd argue. If we look at the Pan Am one, it didn't have anything like that." Terms of use often work as contracts of adhesion, accord- ing to Zvulony. He likens those contracts to a sign that says, "We are not responsible for lost or stolen property" in a parking lot where drivers are to understand that by using the property, they agree to those terms. But if companies insert a line in their conditions considered to be "totally extreme, unrea- sonable or unconscionable," the case law says that's unenforce- able, says Zvulony. "If I stick in my terms of use, 'Furthermore you agree to give up your first-born child to me,' something totally extreme, un- reasonable or unconscionable to include it, then the case law says that's unenforceable." A blanket ban on linking on web sites, he suggests, is arguably extreme and unreasonable. "We are allowed to agree to unreasonable clauses as long as it's brought to our attention, as long as there's sort of a big red hand pointing at it," he says. Lovrics agrees people often overlook the terms of use. "The truth is, I draft web site terms and conditions regularly and I think most people don't read them or don't take the time to read them," she says. But for Zvulony, there's yet another limitation around terms of use that ban linking. For that contract to be enforceable, who- ever linked to the web site has to be privy to the contract or an ac- tual visitor to the site. "If you send me a bunch of links to the Pan Am site and I up- load it to my web page, I've never gone on [the web site]," he says. "I don't have a contract with them; I never agreed to those terms." Despite those limitations, in- cluding a ban on linking in the terms of use isn't a bad idea if the client is insistent on it, says Zvu- lony. "It may not be enforceable at the end of the day. . . . And you tell that to your client, but it's better to have it in there than not." LT 'I think from a public policy perspective, linking is really the way the Internet works,' says Catherine Lovrics. FOCUS ON Intellectual Property Law T Untitled-1 1 2015-09-24 9:40 AM

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