Impact of the Internet on Contract Law and the （互联网对合同法的影响和）.pdf

Impact of the Internet on Contract Law and the Principles of Offer and Acceptance (Century 21 Canada v Rogers Communications) The Twelve-Minute Civil Litigator 2012, The Law Society of Upper Canada, September 20, 2012. McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca Issue in Rogers case ¬ Can “accessing a publically available website result in the formation of a contract?” ¬ In issue was enforcement of a “browse wrap” or “web wrap” agreement by Century 21 against Zoocasa. ¬ C-21 using terms to prevent Zoocasa from scraping its site to use data in competitive site. ¬ Century 21 Canada Limited Partnership (“CENTURY 21”) provides this website (the “Website”) to you (“You”) subject to your acceptance of the following terms and conditions of use (these “Terms of Use”). By accessing or using the Website You agree to be bound by these Terms of Use without limitation or qualification. If You do not agree to be bound by these Terms of Use, You must not access or use the Website. McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca 2 Issues canvassed ¬ Do web site terms constitute an “offer”? ¬ Can offers be accepted by using a website? ¬ Can offers be accepted by automated agents? ¬ Does including a unilateral right to amend TOS make it unenforceable? ¬ Is providing use of a web site consideration to support an online agreement? ¬ Is there a policy reason for not enforcing TOS that restrict access to information on web sites? McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca 3 What is an offer? ¬ Sookman, Computer, Internet and Electronic Commerce Law, loose leaf (Carswell: Toronto, Ont., 1989) at 10.3 sta