Upcoming ITAC Intervention at the Supreme Court of Canada

As the voice of Canada’s ICT industry, ITAC has an important role in standing up to ensure Canada maintains a competitive and predictable regulatory environment for digital commerce. For this reason, ITAC is intervening at the Supreme Court of Canada in the appeal of Douez v. Facebook, which will be heard by the court on November 4th, 2016.

At its core, the appeal questions the validity of user agreements for online services, especially “choice of forum” clauses, which set out the jurisdiction any legal action must first be pursued. Across ITAC’s membership, a substantial number of companies include choice of forum clauses in their user agreements as a way to create predictability when operating across legal jurisdictions. They are especially important for Canadian small and medium-sized enterprises (SMEs) as they allow these companies to grow and reach global scale without having to maintain lawyers and modify their business to the legal nuances of every province, state or country they operate in. Used responsibly, “choice of forum” clauses help create a predictable framework that allows companies and individuals around the world to work together through a single global internet.

ITAC feels it is important that the Supreme Court of Canada recognize the value of creating a predictable legal environment for online businesses. The Court should also uphold the principle that user agreements signed online hold the same weight as a contract signed on paper.

Another issue this case illustrates is how unnecessary regulatory differences between jurisdictions can create challenges for businesses operating online. As ITAC highlights in a recent Innovation Paper and 2017 Ontario Pre-Budget Submission, several Canadian provinces and territories maintain separate, unharmonized and often duplicative regulations on issues like privacy, data residency and security. If we want to have free digital trade across Canada, provinces, territories and the federal government need to create common or interoperable regulatory approaches in these crucial areas for digital commerce. If we want Canadian companies to go global, the federal government needs to work with international partners through bodies like the OECD, WTO and APEC to create predictable and interoperable regulations for the digital economy between countries.

The internet is the greatest prosperity engine the world has ever known, but it is incumbent on all governments to work together, beyond their individual sovereignty, to keep it that way.

For further information on ITAC’s intervention at the Supreme Court of Canada in Douez v. Facebook please contact David Messer, Sr. Director Policy, ITAC, at dmesser@itac.ca