Canada: The Web: An Extraordinary Promotional Tool For Those Who Know How To Use It - Some Legal Highlights

Last Updated: June 25 2001
Article by Severine Biderman

Today the Internet appears to be an ideal way to conduct business, due to its flexibility, international scope and interactivity. This relatively new market tool implies however that certain legal language be used by those persons who wish to operate a web site for the purpose of introducing a business, products and services, doing business "on-line" or reinforcing their presence on the international scene while avoiding legal problems at the same time.

  • This problem is even further complicated and delicate as one must consider the applicability and effect of foreign laws, rules and protocols which are still being elaborated and re-defined to deal with current realities.
  • The aim of this series of "Communiqués" is to extend some practical legal advice on important issues to those persons who wish to successfully construct and exploit a web site in order to see it bears fruit.
  • In this first instalment, we shall deal with certain elementary questions which deal with the construction of a web site, in a general sense.

Where To Locate Domicile : Choice And Availability Of A Domain Name

  • The choice and availability of a domain name is paramount and the obvious starting point. As you know a domain name is a unique address by which a web site is accessed and is the primary identifier of the Internet user. In order to avoid disputes involving your choice of domain name, the domain name which you seek to register must not infringe upon the prior rights of another person using a similar or identical trade mark, trade name or generally any words or symbols which are distinctive and which benefit from the protection afforded by law. Many domain name registrars exercise little if no initial control over the application process, including the selection of a domain name, and apply the principle "first come first served" in allowing the registration of domain names. The validity of the domain name registration can always be challenged by the owner of a pre-existing right in and to such name.
  • It is also advisable to register the domain name chosen with all other extensions available, namely ".com", ".net", ".org" and if possible extensions corresponding to geographic regions denoted by, for example ".ca" for Canada ".fr" for France and ".uk" for Great Britain. These geographic top level domain names and the particulars governing them were discussed in our previous "Communiqués" which are accessible from our website.
  • It is noteworthy that seven (7) new Top Legal Domains ("TLDs") should be available by this summer. These new TLDs are ".aero" for air-transport industry, ".biz" for business, ".coop" for cooperatives, ".info" for unrestricted general use, ".museums" for museums, ".name" for individuals and ".pro" for accountants, lawyers, physicians and other professionals. We recommend that your trade marks or trade names be registered with each and every relevant TLD as soon as they become available in order to avoid potential cybersquatting conflicts.
  • It is important to remember that the mere registration of a domain name does not, in and of itself, confer any specific protection to the applicant. We would therefore recommend that such domain name be protected through registration of a trade mark, to the extent that it is being used in connection with the sale of wares or the provision of any services and that it is available for protection under existing trade mark laws.

Linking : The Choice Of Keyword Metatags

  • In order to expand the number of visitors to your web site and consequently the goodwill associated with your enterprise, the visibility of your web site is essential.
  • This visibility will necessarily be heightened by availing yourself of an indexation strategy which uses keywords or metatags.
  • A metatag is a search string keyword which is incorporated into a web page and which permits automatic referencing of a web page by search engines such as, for example, "Yahoo!" or "La Toile du Québec". Essentially, metatags are used as a mean of directing internet users, who are seeking information on a selected topic, to web sites offering such information.
  • The choice of such metatags or keywords is as important as the choice of your domain name. In essence, the more general these words are, the greater is the potential for your web site to be confined to being one of many thousands of possible responses to a search request. On the flipside, if the metatag is overly specific, the search results could prove to be negative in the sense that the internet user may not have searched for specific information using such narrow keywords.
  • Recent case law, which is predominantly American, acts as a constant reminder that use of a competitor's trade mark as a metatag is illegal. Such conduct could constitute unfair competition, the passing off of a trade mark or an illegal appropriation of clientele. This would also be the case where two independent entities are using similar trade marks to promote similar business activities. However, in most instances, similar names may be used as keyword metatag if they are words of a common meaning without any distinctive quality. In sum, it is important to put in place a firm policy relating to "keywords" which conform to both intellectual property laws and competition laws.

Interactivity : Links To Other Sites Or Hyperlinks

  • The setting up of external hypertext links, namely linkages which give access to web sites other than your own, can raise certain issues relating to liability as well as to intellectual property rights.
  • In effect, in passing from one web page to another, the new web page which appears on the screen may continue to reference distinctive elements found on the first site consulted, such as logos, distinctive colours or trade marks. Consequently, retention of the same frame when passing from one web site to another can induce the user into error as to the origin of products or services and as such can trigger your liability. For example, this may occur where your products are presented on a web page simultaneously with the trade mark of another company. Moreover, you would not wish to see your liability engaged as a result of illegal content which has been posted on the web site of another person.
  • Therefore, insofar as hypertext links are concerned, you should limit your liability by incorporating, onto your web site, an explicit legal notice delineating your responsibility and you should conclude, if possible, written contracts governing those hyperlinks established with owners of the other web sites involved.

The Language Used : Use Of The French Language

  • The most widely used practice today is to offer visitors of your web site a choice of language to be used. This being said however, the use of French is obligatory in certain instances.
  • The "Office de la langue française" (the "Office") is of the view that commercial advertising posted on a web site falls within the purview of the Charter of French Language (R.S.Q. c.C-11). For example, the Office has determined that a French version of all advertising found on a web site must be made available if the host of the web site is a company located in Quebec whose products are available in Quebec.
  • According to the Office "a company which does not have its head office, place of business or business address in Quebec cannot be compelled, under Quebec laws, to use French on its web site". The criteria of the Office currently used in Quebec to determine the situs of a business is the place of business of the company and not the place where its internet server is located.
  • The restrictions imposed by the Charter of French Language likely apply to all forms of commercial advertising for wares or services posted by any person or entity having a place of business in Quebec.
  • Finally, we would recommend that your legal notice, as well as the general terms and conditions for use of your web site, specify the official language of your web site and alert users to the fact that there may be significant differences between this "official language" and any translations which you provide.

Governing Laws : A Question Of Choice

  • The matter of whose laws are applicable to a web site has been the subject of many controversial debates. Some jurists advance the theory of "emission" in virtue of which the law applicable to the site would be that of the territory where the web server is located. Other jurists would like the theory of "access" to prevail in which the place from which the web site is accessed would suffice to determine applicable law; therefore, in view of the international nature of the internet, any jurisdiction can declare itself competent to hear a case and apply its laws.
  • Finally, the Canadian Courts seem to follow a "real and substantial connection" test, in an attempt to synthesize the other theories mentioned above. This test applies a set of criteria in order to establish the jurisdiction "with which the transaction has its closest and most real connection".
  • In any event, until such time as there is a consensus reached on this question, it would be prudent for you to specify a choice of law by indicating that the use of the web site, as well as any contractual relations entered into as a result thereof, are to be governed by the laws of a designated jurisdiction.
  • In this regard, we would suggest that a legal notice to this effect appear on the home page of your web site (as it is the consumers' first contact with your web site) and also on all on-line documents produced by or visible from the web site, most particularly, in any general conditions for the sale of any of your products or services.

Computers And Freedom To Act : The Collection And Transmission Of Personal Information

  • In operating a web site, you will undoubtedly be required to administer files containing personal data. This would be the case if you contemplated using software which permits multiple users to communicate with each other on-line. Additionally, you may ask visitors to your site to complete information questionnaires and you may wish to send communications to your clients (or more generally to any visitor to your site) in order to compile personal information so that the specific interests of your customer can be targeted by you.
  • The notion of what constitutes personal data is very broad and encompasses the names of individuals as well as all coordinates or personal information which facilitate or permit the identification of these persons such as addresses, telephone numbers, electronic addresses and even their interests or preferences. Use of this personal data cannot be made unless you ensure that such use conforms to all applicable laws governing an individual's right to privacy.
  • In this regard, many countries, provinces or other territories have, as was already done in Québec, adopted laws and regulations governing the collection and use of personal data. In fact, in January 2001, the Parliament of Canada adopted Bill C-6 known as the "Personal Information and Electronic Documents Act" (the "Federal Legislation"). The aim of the Federal Legislation is to establish rules governing the collection, use and divulgation of personal information with a view to balancing the privacy rights of enterprises against the need for businesses to collect, use and communicate personal data in their day to day business activities.

Notification For The Consumer : Integrating Legal Notices

  • A legal notice serves a variety of purposes : it informs, delineates the liability of the parties concerned and facilitates the making of proof. Any user of your web site should be advised in writing of the conditions of use of your site and should be clearly notified of any rights which you enjoy to the materials displayed on your site as well as in the products and services offered to them (i.e. copyright, trade marks, patents, etc.). Careful delineation of the conditions of use of a given web site will no doubt have a preventive effect: that of reducing the potential for (i) conflict between vendors and consumers; and for (ii) infringement of intellectual property rights. It should also lead to the smooth resolution of disputes within agreed upon parameters.
  • Should litigation arise which stems from the use of a web site, the legal notice will go a long way towards establishing the ownership rights of the web site owner, the priority of these rights and the owner's intention to continuously exploit them. It will also serve to deter the "visitor" of a web site from invoking the owner's renunciation or waiver of rights.
  • The proper placement of this legal notice is essential so as to ensure that the notice is clearly brought to the attention of the web site visitor and accepted by such visitor before permission to proceed is granted. The notice should appear on the home page of the web site as well as every other visible web page so that one can only advance further by clicking on an icon described as "legal notice".

As indicated above, such notice should specifically mention the following :

  1. A clear notification of intellectual property rights such as :
  1. trade marks associated with a given product or service; and
  2. copyrights benefiting the web site itself, accompanied by a notice which prohibits the unauthorized reproduction of all or any part of the contents of the site;
  1. information regarding links between your web site and others together with a disclaimer of liability in connection with the content or substance of those sites which may be accessed through these links; and
  2. the choice of law which will govern the parties.

In the interim, we invite you to communicate with us should you require any additional information related to the operation of a web site or should you require the preparation of any of the contracts or legal notices related thereto. We would also be pleased to advise you on any matters relating to intellectual property rights and the protections associated with this right.

Our "Communiqué" aims to bring to your attention the contemporary legal issues which we believe are and should be of interest to the business community and under no circumstances is it to be considered to be a legal opinion.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions