In September 2011, the British Columbia Supreme Court delivered
its decision in Century 21 Canada Limited Partnership v. Rogers
Communications Inc. [doing business as Zoocasa Inc.],
2011 BCSC 1196 (Zoocasa). This is among the first cases in
Canada to test the boundaries of "browse wrap" terms of
use agreements commonly employed by Internet websites.
Unlike its cousins the "shrink wrap agreement" and the
"click wrap agreement", a browse wrap agreement is one
that does not require the acceptance of a contract to be indicated
via some affirmative action, like removing a plastic wrapper or
clicking an "Agree" button. All that is required is for
the user to continue using the relevant service or product after
Browse wrap agreements rely on the notion that, where an offer
is made subject to certain conditions and a person takes the
benefit of the offer with knowledge of the conditions, the taking
can itself be an acceptance of the terms of the contract.
Not all browse wrap agreements are enforceable. The court
referred to a decision from the U.S. Court of Appeals for the
Second Circuit, in which a browse wrap agreement was ruled
unenforceable because the purchaser could download software without
there must be clear assent to those terms by the user. According to
the court, "a properly enforceable browse wrap agreement will
give the user the opportunity to read it before deeming the
consumer's use of the website as acceptance of the Terms of
One twist in this case was the question of whether an indexing
robot – a computer program that automatically visits
websites to copy web pages and generate an index of their content
– can meet the conditions rendering a browse wrap
agreement enforceable. A robot may be incapable of understanding
lack the ability to provide assent for entering into a binding
However, the court held that the mere involvement of a computer
does not allow the individual who programs the computer to escape
liability for the actions it carries out on that individual's
It is worth noting that the facts of this case allowed the court
to avoid dealing with the thorny issue of notice directly. Through
several occasions. Moreover, there was evidence that Zoocasa had
specifically targeted the Century 21 website, by having an employee
– presumably human – review the layout of the
Century 21 site prior to programming of the indexing robot.
Thus, with actual notice not in dispute, the court found that
indexing robot, to make use of the Century 21 website. Since the
court found that Zoocasa's actions were in breach.
The court next turned its attention to the question of copyright
infringement. Here, Zoocasa advanced a fair dealing defense,
arguing that its actions constituted "research," one of
the enumerated exceptions to infringement under the Copyright
Act. In particular, Zoocasa argued that "research"
includes "the action or instance of searching carefully for a
specified thing or person" and argued that "commercial
research by a consumer qualifies as research."
After consideration of the fair dealing factors, the court found
that Zoocasa's copying of basic information, such as property
addresses and legal descriptions, was not copyright infringement.
However, the copying of original property descriptions created by
real estate agents and their employees, and moreover "the
repeated daily access and indexing of such information"
exceeded what could be considered fair dealing. Zoocasa was ordered
to pay nominal damages for breach of contract, and additional
statutory damages for breach of copyright in the sum of
Despite the outcome of this case, website owners, search engine
providers, and web surfers in general would be well-served to note
that at least some questions of sufficient notice, and acceptance,
remain unresolved. In particular, it remains an open question
whether a generic indexing robot – one that merely
stumbles across a website in the context of an untargeted search
– could bind its owner to the terms of a browse wrap
agreement. Prudence dictates that website owners continue providing
separate written notice as soon as they are made aware of possible
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.
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On March 11, 2009, the Office of the Superintendent of Financial
Institutions of Canada (OSFI) released a revised version of Guideline B-10, Outsourcing of Business Activities, Functions and Processes.
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