Intellectual Property

Confidential Information • Duty not to disclose confidential

information about a business that would cause harm to the business or bring personal benefit

• duty created by a business relationship• duty stems from common law, trusts and

fiduciary obligations• information should be identified as

confidential

Trade Secrets • Confidential information that creates a

competitive advantage• information must be valuable to the

business• not commonly known or readily available• disclosure may be prohibited by contract

in a restrictive covenant• non-disclosure agreement protects

employer

Remedies • Plaintiff must show that the disclosure of

information has caused harm• Remedies - injunction, damages - general

and punitive, accounting• contract may provide remedies for breach• claims in tort - trade slander, invasion of

privacy• Criminal Code - theft, fraud, mischief

Question for Discussion • Employees leaving their jobs may be

restricted from using the information they have gained in another job, restricting their chances of new employment.

• What social and public policy issues are associated with these kinds of employment restrictions?

Breach of Privacy • Privacy legislation prohibits using

another person’s name or photograph without permission

• Injurious falsehood - Misleading a customer about the nature of a product is a crime

• Note application of federal Personal Information Protection and Electronic Documents Act

Challenges• Determining which jurisdiction’s

rules apply• Identity of the participants not

always easily established• Security or accuracy of information

cannot be guaranteed • Difficult to enforce legal rights when

a party has been injured

Implications for Tort Law • Defamation• On-line publication is considered

broadcasting and therefore an offence can be treated as libel

• No intervention to exert controls on what is published on email or in a chat room

• Identification of perpetrator• Determining the appropriate jurisdiction

in which to sue• Obligations of Internet Service Providers

Electronic Commerce • Uniform Electronic Commerce Act• Has been adopted in some

jurisdictions• Methods for recognizing electronic

signatures• Sale of Goods• Contract law offers some protection

Criminal Activities • Jurisdictional boundaries –

important consideration• Gambling• Pornography

• Operators frequently move their base of operation to a jurisdiction where the activity is not illegal – but must notify participants

Criminal Activities / 2

• Sale of securities on line subject to same regulations as other trading methods

• Retail scams proliferate and ‘buyer beware’ advice applies

Abusive Activities • Self-regulation essential to control• Unreliable information• Unsolicited advertising – spam• Virus purveyors• ISP may be responsible to stop

abuses• Legal enforcement is difficult

Security and Privacy • Misuse of private information growing

concern• Care must be taken about giving

personal information over the internet• Unauthorized interception of private

communications difficult to control• Data stored on computers is

vulnerable to hackers

Statutory Controls • Personal Information Protection

and Electronic Documents Act• Federal legislation being applied

where no similar provincial legislation is currently in place

• Check for new federal and provincial legislation

Employer Concerns • Employer should have policies in

place to monitor and restrict employee use of internet

• Opportunity and means for employees to interfere with company data

• Employer may be vicariously liable for defamation by employee

Intellectual Property • Copyright law protects software and

original work published on the internet• Trademark law applies to domain

names and website logos• Music downloading continues to be a

problem but is being addressed with new software and new approaches

The Internet• Need for international regulation• Self-regulation has not been very

successful• Individual jurisdictions are creating

laws in attempt to control illegal or abusive activity on the internet but – global control presents unique challenges

Dispute Resolution

• On-line Services • May be efficient and effective

way to resolve disputes between users of the Internet

• Mediation offered in domain name and consumer disputes