[Ecommerce] [NEWS]: Toronto Star on the limits of online disclaimers
Cedric Laurant
chlaurant@epic.org
Mon Feb 10 11:45:02 2003
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E-CONTRACTING CASE SHOWS LIMITS OF ONLINE DISCLAIMERS
My regular Toronto Star Law Bytes column takes a closer look
at Zhu v. Merrill Lynch, a recent Canadian e-contracting
decision in which the court refused to enforce several
disclaimer clauses and criticized an online trading system
for not providing a reasonable level of performance. The
column argues that lawyers must assist in the shaping of the
online experience, by understanding that companies are
effectively architecting an online presence that is subject
to regulatory and legal oversight.
<http://shorl.com/diprydrigraprako> [Toronto Star]
Extracts:
>Despite the mounting legalese, however, a recent case from British
>Columbia suggests that all these legal terms do little to protect a
>site that fails to meet users' reasonable expectations.
[...]
>The judge was particularly dismissive of the disclaimer clause,
>which the broker maintained absolved it of any liability.
>
>Instead, he ruled the clause was unenforceable, characterizing it as
>"an agreement which `virtually eliminates liability for inaccuracy
>in the performance of the services contracted for by the customer'."
[...]
>First, while Canadian law clearly recognizes the enforceability of
>online contracts - several Ontario cases as well as e-commerce
>legislation in force in virtually every province have removed any
>uncertainty in that regard - the validity of specific provisions
>within online contracts remains subject to close scrutiny.
>Particularly in business-to-consumer transactions, courts are very
>reluctant to enforce lopsided terms that transfer all the risk from
>the company to the consumer.
>
>Second, although we have grown accustomed to computer systems that
>crash regularly and Web site features that fail to deliver as
>promised, online service cannot be allowed to slip below the
>reasonable expectations of the average user, particularly where
>there is the prospect for significant liability.
>
>To meet that standard, software code, Web site design, and users'
>online experiences can no longer be left solely to software code
>writers. Rather, lawyers must play a role that goes well beyond
>providing effective terms and conditions. They must assist in the
>shaping of the online experience, by understanding that companies
>are effectively architecting an online presence that is subject to
>regulatory and legal oversight.
[...]
>While innovative features are welcome, Web sites that fail to
>deliver expected performance and functionality raise the prospect of
>legal liability - with or without protective legalese.
--
Cedric Laurant - Policy Counsel
Electronic Privacy Information Center
1718 Connecticut Ave., N.W., Suite 200
Washington, DC 20009 - U.S.A.
Tel: +1 (202) 483-1140 (x114)
Fax: +1 (202) 483-1248
- - - - - - - - - - - - - - - - - - - -
Websites: epic.org - privacy.org
gilc.org - observingsurveillance.org
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<div>E-CONTRACTING CASE SHOWS LIMITS OF ONLINE DISCLAIMERS</div>
<div>My regular Toronto Star Law Bytes column takes a closer look<br>
at Zhu v. Merrill Lynch, a recent Canadian e-contracting<br>
decision in which the court refused to enforce several<br>
disclaimer clauses and criticized an online trading system<br>
for not providing a reasonable level of performance. The<br>
column argues that lawyers must assist in the shaping of the<br>
online experience, by understanding that companies are<br>
effectively architecting an online presence that is subject<br>
to regulatory and legal oversight.</div>
<div><http://shorl.com/diprydrigraprako> [Toronto Star]</div>
<div><br></div>
<div>Extracts:</div>
<div><br></div>
<blockquote type="cite" cite><font face="Times New Roman" size="+1"
color="#000000">Despite the mounting legalese, however, a recent case
from British Columbia suggests that all these legal terms do little to
protect a site that fails to meet users' reasonable
expectations.</font></blockquote>
<div><br></div>
<div>[...]</div>
<div><br></div>
<blockquote type="cite" cite><font face="Times New Roman" size="+1"
color="#000000">The judge was particularly dismissive of the
disclaimer clause, which the broker maintained absolved it of any
liability.<br>
<br>
Instead, he ruled the clause was unenforceable, characterizing it as
"an agreement which `virtually eliminates liability for
inaccuracy in the performance of the services contracted for by the
customer'."</font></blockquote>
<div><br></div>
<div>[...]</div>
<div><br></div>
<blockquote type="cite" cite><font face="Times New Roman" size="+1"
color="#000000">First, while Canadian law clearly recognizes the
enforceability of online contracts - several Ontario cases as well
as e-commerce legislation in force in virtually every province have
removed any uncertainty in that regard - the validity of specific
provisions within online contracts remains subject to close scrutiny.
Particularly in business-to-consumer transactions, courts are very
reluctant to enforce lopsided terms that transfer all the risk from
the company to the consumer.<br>
<br>
Second, although we have grown accustomed to computer systems that
crash regularly and Web site features that fail to deliver as
promised, online service cannot be allowed to slip below the
reasonable expectations of the average user, particularly where there
is the prospect for significant liability.<br>
<br>
To meet that standard, software code, Web site design, and users'
online experiences can no longer be left solely to software code
writers. Rather, lawyers must play a role that goes well beyond
providing effective terms and conditions. They must assist in the
shaping of the online experience, by understanding that companies are
effectively architecting an online presence that is subject to
regulatory and legal oversight.</font></blockquote>
<div><br></div>
<div>[...]</div>
<div><br></div>
<blockquote type="cite" cite><font face="Times New Roman" size="+1"
color="#000000">While innovative features are welcome, Web sites that
fail to deliver expected performance and functionality raise the
prospect of legal liability - with or without protective
legalese.</font></blockquote>
<div><br></div>
<x-sigsep><pre>--
</pre></x-sigsep>
<div>Cedric Laurant - Policy Counsel<br>
Electronic Privacy Information Center<br>
1718 Connecticut Ave., N.W., Suite 200<br>
Washington, DC 20009 - U.S.A.<br>
Tel: +1 (202) 483-1140 (x114)<br>
Fax: +1 (202) 483-1248<br>
- - - - - - - - - - - - - - - - - - - -</div>
<div>Websites: epic.org - privacy.org</div>
<div>gilc.org - observingsurveillance.org</div>
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