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Electronic Commerce Index

GOVERNMENT ON-LINE
CHECKLIST OF LEGAL ISSUES

Updated as at October 31, 2003

4. Information Technology Procurement
4.1 Financial Administration Act
4.2 Government Contracts Regulations
4.3 Treasury Board Contracting Policy
4.4 Treasury Board Interim Policy on Decision Making in Limiting Contractor Liability in Crown Procurement Contracts
5. Canada's Trade Law Obligations
5.1 North American Free Trade Agreement;  (click on "NAFTA")
5.2 World Trade Organization Agreements
6. Security
6.1 Treasury Board Government Security Policy
6.2 Treasury Board Policy on Electronic Authorization and Authentication
6.3 Treasury Board Policy on the Use of Electronic Networks
6.4 Treasury Board Policy for Public Key Infrastructure Management in the Government of Canada
6.5 PIPEDA
6.6 Audit Guide - Information Technology Security
6.7 Lawful Access Consultation Paper, Department of Justice, August 25, 2002
7. Tort Liability
7.1.1 Crown Liability and Proceedings Act
7.1.2 Treasury Board Common Look and Feel Guidelines
7.2 Cases
  Canadian
  7.2.1 Braintech Inc. v. Kostiuk (1999), 171 D.L.R. (4th) 46, B.C.C.A., leave to appeal to the Supreme Court was denied. (The Court held that "[t]he exercise of jurisdiction is determined by examining the level of interactivity and the commercial nature of the exchange of information that occurs on a web site.")
  7.2.2 Hercules Management Ltd. v. Ernst & Young, [1997] 2 S.C. R. 165. (The Court held that liability in tort only arises where a prima facie duty of care is owed to the plaintiff according to the traditional principles of law as established by prior jurisprudence and where that duty is not negated or limited by policy considerations.)
 
  U.S.
  7.2.3 T.J. Hooper v. Northern Barge, 60 F (2d) 737 (1932). (It may be negligent not to use the best available technology notwithstanding it is not yet the custom in the industry.)
  7.2.4 United States v. Carroll Towing, 159 F.2d 169 [2d Circ. 1947].
  7.2.5 Pittman Estate v. Bain (1994), 112 D.L.R. (4th) 257 (Ont. G.D.)
  7.2.6 Zippo Manufacturing Company v. Zippo Dotcom Inc., 952 F. Supp. 1119 W.D.Pa 1997) (The Court held that the likelihood that personal jurisdiction can be constitutionally exercised based on entity's presence on Internet computer networks is directly proportionate to the nature and quality of commercial activity that entity conducts over the Internet. The Court has jurisdiction when the site is active, ie, the operator of the site enters into contracts or operates some form of e-commerce, as opposed to it being passive, ie. the operator maintains a passive website that simply posts information.)
  7.2.7 Huggins v. Citibank, N.A., [2003] Opinion No. 25691 (11 August 2003) (South Carolina Supreme Court). (The Court declined to recognize a legal duty of care between credit card issuers and those individuals whose identities may be stolen, stating that the relationship, if any, between the two is far too attenuated to give rise to the level of a duty between them.)
  7.2.8 Intel v. Hamidi, 71 P.3d 296 (2003). (California Supreme Court held that e-mail sent from the Plaintiff's former employee to its current employees did not constitute trespass. Plaintiff failed to demonstrate damage to its computer system or impairment to its functioning.)
8. Privacy
8.1  Federal
  8.1.1 Privacy Act
  8.1.2 PIPEDA, Part 1
 8.2 Policies and Other
  8.2.1 Treasury Board, Common Look and Feel for the Internet
  8.2.2 Treasury Board Policies on Access to Information
  8.2.3 Treasury Board Policies on Privacy
  8.2.4 Treasury Board Privacy Impact Assessment Policy and Guidelines
  8.2.5 Privacy Impact Assessment E-Learning Tool
  8.2.6 Lawful Access Consultation Paper, Department of Justice, August 25, 2002
8.3  Provincial/Territorial
  8.3.1 See the Privacy Commissioner's web-site for Provincial/Territorial privacy legislation
8.4 Cases
  Canadian
  8.4.1 Smith v. Canada (Attorney General) , [2001] 3 S.C.R. 902, ((CCRA/HRD data-matching case) Information given to the Unemployment Insurance Commission by the Canada Customs and Revenue Agency disclosed that the appellant had continued to receive employment insurance benefits during a period when she was out of the country. The Supreme Court held that the appellant could not have had a reasonable expectation of privacy in relation to the information she disclosed to CCRA.
  8.4.2 R. v. Plant, [1993] 3 S.C.R. 281 (The Court held that the search of computerized records was not unreasonable and did not fall within section 8 of the Canadian Charter of Rights and Freedoms. The appellant did not hold a reasonable expectation of privacy in these records that outweighed the state interest in enforcing narcotics laws.)
  8.4.3 R. v. Duarte, [1990] 1 S.C.R. 30. (audio recording). (The interception of private communications without a court authorization, even with the consent of one of the parties to the communication, infringed the section 8 Charter rights of any other party to the communication who did not consent to the interception.)
  8.4.4 R. v. Wong, [1990] 3 S.C.R. 36. (The Court found that surreptitious video surveillance by police of suspected illegal gambling in a hotel room was an unreasonable search and seizure under section 8 of the Charter and was not justified under section 1 of the Charter.)
  8.4.5 R. v. Weir, [2001] A.J. No. 869, upholding [1998] A.J. No. 155 (Alta. Q.B.). (During a routine repair service, the ISP discovered pornography material in the defendant's e-mail. The ISP contacted the police who then asked for a warrant to search the accused's residence. A computer and disks containing further pornographic pictures were seized. The accused argued that e-mail carries an expectation of privacy, and that the police had conducted a warrantless search and seizure by requesting and receiving access to the initial e-mail message. While the court found that e-mail did carry a reasonable expectation of privacy, this privacy expectation was less than could be expected with first class land mail. The Court ruled that the evidence was admissible and the accused was convicted. The decision was upheld on appeal.
  8.4.6 R. v. Bryan, [1999] O.J. No. 5074 (QuickLaw), Oct. 29, 1999, (Ont. S.C.J.).
  8.4.7 Iorfida v. MacIntyre (1994), 21 O.R. (3d) 186 (Ont. Ct. Gen. Div.).
  8.4.8 R. v. Stewart (1988), 63 CR. (3d) 305 (S.C.C.).
  8.4.9 R. v. Collins, [1987] 1 S.C.R. 265.
  8.4.10 Irwin Toy Ltd. v. Doe, [2000] O.J. No. 3318 (QuickLaw), (The Ontario Superior Court ordered an ISP to reveal the identity of one of its customers alleged to have defamed and to have stolen confidential information from the plaintiffs.)
  8.4.11 Loblaw Companies Ltd. v. Aliant Telecom Inc, 2003 NBQB 215. (The Court granted leave to discover ISPs in order to identify an intended defendant.)
  8.4.12 See Decisions of the Privacy Commissioner respecting the Personal Information Protection and Electronic Documents Act and respecting the Privacy Act
 
  U.S.
  8.4.13 Urofsky v. Gilmore, U.S. District Ct., Eastern District of Virginia, No. 98-1481 (February 10, 1999).
  8.4.14 Mainstream Loudon v. Board of Trustees of the Loudon County Library, U.S. District Ct., Eastern District of Virginia, April 7, 1998, and Nov. 213, 1998 Brinkema J.
  8.4.15 McVeigh v. Cohen, U.S. District Ct. D.C., Jan. 26, 1998, Sporkin J.
  8.4.16 O'Connor v. Ortega, 480 U.S. 709 (1987).
  8.4.17 New Jersey v. T.L.O., 469 U.S. 325 (1985).
  8.4.18 Kyllo v. United States, (99-8508) 121 S.Ct. 2038. (The Court held that where the government uses a thermal imaging device that is not in general public use, to explore details of a private home that would previously have been unknowable without physical intrusion, the surveillance is a search and is presumptively unreasonable without a warrant.)


Last Updated: 2005-11-15 Back to Top Important Notices