What the heck is social media law? (video)

July 23, 2012

It’s one of the newest and most rapidly evolving areas of law, social media law. In this short video, I discuss the area of law and the types of services that Pitblado Law is providing to clients.


Internet cached webpages: What are they and how can you deal with them?

March 15, 2012

During the course of my practice I’m often asked to provide social media law advice, typically to organizations or individuals who want defamatory, proprietary or privacy invasive content removed from the Internet.  Once content has been successfully removed from a website I often discuss with clients issues related to Internet cached webpages.  So I thought it would be helpful to provide some general information on what Internet cached webpages are and how you can deal with them in situations where you don’t want to have certain content available online.

What are Internet cached webpages? 

When search engines such as Google, Yahoo, and Bing crawl a website, they take a snapshot of what the site looks like at that time. This “snapshot” is known as a cached webpage and it’s stored by the search engine. The cached webpage is what the search engine then uses to determine whether the site matches a user’s specific query.

When a user clicks on the cached webpage, they will be taken to the version of the webpage that was online when the site was last crawled and not the current version. The cached webpage can be accessed when the current version of the site is unavailable due to Internet congestion, a slow website, or the webpage has recently been removed.

How can you deal with Internet cached webpages?

It is very difficult to remove a cached webpage from a search engine if you’re not the webmaster of the website. If you’re not the webmaster and you’d like a cached page removed from Google, Yahoo or Bing, you have three options:

  1. You can contact the site administrator and ask them to take the steps necessary to have the cached webpage removed from the search engine in question. Google typically responds to such requests from webmasters within 2-3 hours and Yahoo typically responds in 5 hours;
  2. You can seek a court order or other legal document to have certain content removed from the website/cached webpage; or
  3. You can just wait until the search engine crawls the site again and updates its cached webpages. This option can take the longest amount of time to see results since it might be 1-2 months before the site is crawled again.

Google offers an additional tool to have a cached webpage removed by a party who does not own the webpage in question. My understanding is that this process will only work for HTML pages and will not work for PDFs or .doc files):

  1. The webpage must be have been updated since the cached version;
  2. Go to (http://support.google.com/webmasters/bin/answer.py?hl=en&answer=1663691) and click on Google Public URL Removal Tool;
  3. Sign in to Google;
  4. Then it will prompt you for the URL you’d like removed;
  5. Click Continue;
  6. Type a word that appears on the out-of-date cached version of the page but not anywhere on the live version. Its better to use single words and not phrases; and
  7. Click Remove cache.

Given the technical nature of this topic, and fact that I’m not a techie, I’d recommend that you work with a technology professional and not rely on this post. That being said I hope this helps and at least provides you with some general information to get you started.


Data Security Budgets to Rocket

September 16, 2010

PriceWaterhouseCoopers (PWC) has just released its Global State of Information Security Survey, which says that corporate spending on data security will increase sharply in the coming years.   ComputerWeekly.com reports that more than half of respondents to the PWC survey say that their companies plan to spend more on technological defences against security breaches, an increase of 14% from last year.  The survey also reveals that the impact of security breaches is growing.  According to ComputerWeekly.com “the number of companies reporting financial losses from data breaches increased 6% in the past year to 20%, up from only 8% in 2008.  Intellectual property theft has increased to effect 15% of companies reporting data breaches, up from just 5% in 2008.  An increase in the number of sophisticated attacks aimed at stealing information from specific companies is also driving increased security spending according to the Financial Times.” 

The PWC survey demonstrates that spending is shifting to monitoring of company networks, at a time when more employees are bringing their own PDA’s and computers into the workplace.  But as PWC states, businesses should be making employees the first line of defence against data leaks. 

The PWC survey and commentary serves as a reminder of the need to focus resources for data security (and privacy law compliance) strategically. This means investing in technological safeguards but it should mean investing in privacy training for your staff.  It’s an important point because so many of the privacy breaches these days result from mistakes, or human error, by one’s own employees.  I’d suggest that you compare your organization’s line item for network monitoring with your line item (if it exists) for privacy training. Are your privacy risk mitigation efforts as strategic as they could be?


Eddie Van Halen takes on Nike in IP battle

June 18, 2009

MusicianRock legend Eddie Van Halen, best known as the lead guitarist of Van Halen, is reportedly taking legal action against Nike over the alleged use of his signature guitar color scheme on Nike’s new Nike Dunk runners.  Van Halen had the red, white and black splattered design most commonly associated with his “frankenstrat” guitar copyrighted in 2001.  Van Halen is claiming that the Nike shoes are damaging his image and “causing irreparable harm and damage” to his design.  Nike has refuted the allegations and stated that “the Dunk shoe design is not substantially similar to any of the Van Halen designs, and Nike has not referenced the Van Halen name or image as part of any marketing campaign or promotional material associated with the shoe.” Interestingly, Van Halen recently released his own shoe line called or EVH shoes, which feature the recognizable pattern.

This case is noteworthy because it demonstrates the importance of intellectual property rights and how some protect such assets.  Having a copyright gives Van Halen the right to control how his design can or cannot be used.  Intellectual property rights allow owners to protect their assets against infringement and defend their rights in court. A successful claim may result in monetary damages, an injunction from the use of the infringing material or destruction of the infringing material.  Van Halen is taking advantage of the court process by claiming damages and the destruction of all products associated with the Nike Dunk runners. On the other hand, lawsuits can be expensive and that in order to infringe the materials have to be substantially similar.  It’s questionable whether the Nike Dunks bare a substantial similarity to Van Halen’s guitar design.  Remember the high profile decision between The Wyrd Sisters, a Winnipeg folk group, and Warner Bros. Entertainment Inc. that saw the band lose a considerable amount of money (including $140,000 in costs) when the judge ruled that the band’s name would not be confused with a band in one of the Harry Potter movies. 

Finally, Van Halen may be “running with the devil” and inviting himself up to his own copyright infringement lawsuit.  The EVH shoe line has been argued by some as bearing a striking resemblance to Converse All-Stars, a company that just happens to be owned by – you guessed it – Nike.


IP Osgoode (at Osgoode Hall Law School) names On the Cutting Edge “Pick of the Week”

June 10, 2009

ChoicesI was delighted to learn that IP Osgoode has named this blog the “Pick of the Week”!

IP Osgoode at Osgood Hall Law School in Toronto is a new, independent and authoritative voice which explores legal governance issues at the intersection of intellectual property (IP) and technology. If you haven’t yet visited the IP Osgoode website, I would encourage you to do so as it contains some great content.

If you are also interested in finding additional resources, you may want to visit the Nymity website. Of particular interest, the Nymity website has a section dedicated to recent privacy breaches and recent privacy studies. Finally, you may also want to visit the Canadian Association of Professional Access and Privacy Administrators website.

Hope these links help!


Information & Ideas team speaks out on slaw.ca

May 29, 2009

It’s been a thrilling week for my colleagues at Pitblado LLP as it was announced earlier this week that we were to be the 1st Canadian law firm to be a guest blogger on the must-read slaw.ca.  Yours truly, three of my colleagues from our firm’s Information & Ideas Practice Group as well as our firm’s librarian each contributed one post a day this week to slaw.ca on cutting edge legal topics.  Here’s what we covered…

On Monday, I posted “What Would Happen If One of your Employees Posted a Video of an Irate Customer on YouTube?”, which I cross posted on my blog earlier this week.  The post highlights a YouTube video of an irrate customer as a reminder to Canadian businesses of the powers of new technologies such as YouTube and the corresponding need to protect against the dissemination of this type of video through employee privacy training and the adoption and enforcement of privacy and procedures.

On Tuesday, Carol Lynn Schafer posted “Do TOS Have the Final Word on our Fundamental Rights and Freedoms?”, which discusses the controversial effects of Terms of Service on popular websites such as Facebook and Twitter.  As Carol Lynn notes, Terms of Service should be drafted with the bigger picture in mind and can no longer be seen as standard agreements that can be treated with a one size fits all approach.

On Wednesday, Jolin Spencer posted “Whose Property Is It, Anyway?”, which discusses the questions that come into play when employees leave their positions.  For example, what can an employee take, and what must they leave, when they vacate their position? As Jolin points out, no business wants its intellectual property assets walking out the door with a former employee.

On Thursday, our firm’s librarian, Karen Sawatsky, posted “Legal Research Bootcamp – Winnipeg Style”, which discusses her experience collaborating with members of the Manitoba Bar Association and the Law Society of Manitoba to create a CLE for articling students on legal research. The Legal Research Bootcamp is a first for Manitoba students, and aims to bridge the gap between when students start their articles and when CPLED begins in the fall.

And last but not least, today Adam Herstein posted “Manitoba: Innovative Fighter of Child Sexual Exploitation”, which focuses on Manitoba’s recent enactment of The Child and Family Services Amendment Act (Child Pornography Reporting) (Manitoba) and how Manitoba is the first province in Canada to enact legislation that makes it mandatory for a person who encounters child pornography to report it to authorities.  Adam also notes that Canada has a national tipline called Cybertip.ca for reporting the sexual exploitation of children.

Thanks to slaw.ca for the opportunity to contribute!


When should businesses use the ® or ™ symbols?

May 13, 2009

RegisteredTM_svgYou have probably seen the ® or ™ symbol on products or in advertisements. But what do these symbols mean and when is it appropriate to use them?

Generally, the ® or ™ symbols are used in connection with a trade-mark, which is a word, symbol or design used to distinguish the wares or services of one person or organization from those of others. Trade-marks can be valuable intellectual property.

The Trade-marks Act (Canada) (the “TM Act”) does not contain any marking requirements. However, trade-mark owners often indicate their registration through certain symbols, namely, ® (registered) or ™ (trade-mark). Although the TM Act does not require the use of these symbols, in Canada, the ™ and ® symbols may be used whether the trade-mark is registered or not. However, while this is not a requirement of the TM Act, the ® should be used only if the mark is registered with the Canadian Intellectual Property Office. If the ® is used and the mark is not in fact registered, it may be possible for someone to argue its use amounts to false advertising. The ™ suggests the mark is not registered, but can help establish distinctiveness in the mark.

One should be especially careful using the ® outside in Canada. In certain jurisdictions, including the U.S., ® may only be used by the owner of a mark following registration with that jurisdiction’s trade-mark office. For example, if a Canadian company is marketing a product in the U.S. and its mark is not registered with the U.S. Patent and Trademark Office, it would not be able to use the ® in connection with its mark and could only use the ™, even if the company has been using ® in Canada all along.

Businesses should consider having their intellectual property “audited” by legal counsel with an expertise in the field and, in doing so, developing an appropriate trade-marks business strategy. When I advise my clients on trade-marks matters I often rely on the expert counsel of my friends and colleagues Jolin Spencer (whom I should thank for this blog post), Robert Watchman and Howard Nerman, all of whom have expertise in trade-marks law.


New generic Top Level Domain extensions announced

May 5, 2009

urls-2Earlier this year, the Internet Corporation for Assigned Names and Numbers (“ICANN”) announced that they will be opening up the generic Top Level Domain extensions (the “gTLDs”) to allow for personalized extensions.  I could (for a mere US$185,000.00+) now apply for a .brian or even a .privacy.  And while the chances of me starting a .brian are very slim, it will be interesting to see how many organizations pay the application fee and create their own .blank extension.  Opening up the gTLDs will likely force trademark owners to evaluate their brand strategies and, in doing so, weigh the costs and benefits of buying any or all gTLDs related to their brand.

If you’re a trademark owner and you want to approach your strategy conservatively, then you may want to take a defensive position and register any of the gTLDs that relate to the business in which you’re engaged.  The list of commercial gTLDs would include .com, .net., .info, .org, .tel, .biz, .mobi, .tv and any other TLDs that seem to have a commercial application.  Additionally, you may want to register and maintain the country code domain names (ccTLDs) in the jurisdictions where your organization offers, or plans to offer, its products or services.  Once this is completed, you should then register any known variations of your trademark.

While, in theory, this is a very effective strategy – in practice, this strategy will be more difficult to execute.  For example, the owners of Lego currently own 450 domain names within the TLDs.  They recently pursued and won a WIPO arbitration decision against a cybersquatter who had registered the domains Justlegos.com, legosonly.com, and onlylegos.com; illustrating that even the most vigilant defensive strategy for the registration of domains names cannot prevent all infringements.  As such, any brand strategy should be accompanied by vigorous monitoring and enforcement.  The decision about which TLDs to register is a business decision that must weigh the cost of brand enforcement from a defensive position and an offensive position.



Do you actually read website Terms of Use?

February 24, 2009

readingLast week’s headlines regarding Facebook (see post below) really seemed to raise the awareness of Facebook users about its Terms of Use.  The troubling reality that many Facebook users haven’t read its Terms of Use illustrates the all too common practice of website users not reading the Terms of Use of websites they visit. 

Website Terms of Use are important to read, especially if you’re then going to post information on or through the website.  If you’re a Facebook user, read its Terms of Use to determine if you actually agree to them.  If not, you may want to reconsider continuing to be a Facebook user or you may want to simply refrain from posting content that you don’t want to fall under the scope of its Terms of Use. 

If your business has a website, check to see if it has a comprehensive Terms of Use document that’s been customized accordingly. Terms of Use are vital documents for websites because they set out the ground rules regarding – among other things – the ownership of content, licence rights, use of the website by minors, user submissions/postings and intellectual property rights.  They are intended to serve as legally binding contracts between website operators and users, so they’re pretty important!

Facebook may have suffered a public relations setback last week, but for a commercial enterprise it was on the right path when it reviewed and tried to customize its Terms of Use to meet its business objectives.  All businesses that have websites should review and, if necessary, modify their Terms of Use on a regular basis.


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