When I went to law school there was a lot of emphasis on the emerging laws related to tech businesses. We spent a lot of time trying to figure out which issues applied, depending on whether the business was online or “bricks and mortar”. A decade and a half later, that distinction is almost non-existent; there are virtually no businesses left that don’t face technology and internet issues every day.
There are certainly those businesses which are strongly associated with technology law – the online retailers, the social networks, the dating sites, the online associations. But now even our plumber, trucker and construction company clients have to deal with internet issues. Just the presence of a website meant to drive business to the physical location or sales team, or a social media account meant to chronicle the company’s new marketing initiative, or even the processing of in-house data and e-mail – all of these present potential hazards which require thinking about various internet issues.
Give yourself an informal audit and see just how online your business really is.
Does your business make any agreement online – whether through an electronic retail (I really wish the phrase e-tail had caught on…) interface or even through e-mail? If so, is it binding? If so, under which jurisdiction’s laws? If there is a dispute, where will it be contested? If there are contract terms, how were they presented, and how was consent validated?
Does your business transfer data across national boundaries? Does that violate Canada’s privacy laws or your user, or third party, agreements? What is your procedure for a data breach?
Do you have a website? Did you design it or was it contracted out? Do you own the copyright to it? Is there any third party copyrighted material on it that may make you liable for damages in the thousands? Do you have a valid terms of use that govern visitor use of the site?
Do you actively monitor your brand and your trade-marks across the web? Do you enforce use of your marks and deal with passing off or defamation issues as they occur?
Do you plan to communicate with your customers through e-mail, the internet or text messaging? Do you know all about Canada’s new Anti-spam legislation? Are you actively recording your customer’s consent to your marketing program, and is it in compliance with the law? Are you familiar with the penalties that could put your company out of business for a minor infraction?
If you can’t answer all of these questions with absolute certainty, then you should be talking to us about your exposure as soon as possible.
Scott R. Young