The Challenge Of Complying (Or Not) With Communication Laws Online

Is it possible to fully comply with all the laws surrounding online communication? Michel Jaccard, founder of id est avocats, says “The answer is, ‘no.’” Speaking last week at the Club Suisse de la Presse, Jaccard made the case that when it comes to the online world, we should look beyond legal compliance and start thinking more strategically.

Reliance on traditional forms of legal action no longer yields the results that businesses and individuals expect. According to Jaccard, “legal compliance in the online world does not have the same value as in the offline world.” Online legal infringement has become unavoidable; though in order to reach desired outcomes, it often makes better sense for businesses and individuals to focus more broadly than simply on the legal issue itself.

So long as online communication laws remain a grey area, legal advice alone will be of inherently limited efficacy. While there are companies like Netflix, which was able to “find a way to deliver content to their customers in a legal way,” this is not the only option. By contrast, Google Books chose to weather the storm of litigation until the industry shifted in its favour. Uber Technologies’ current valuation is in the dozens of billions of dollars while the company faces injunctions and litigation in several key jurisdictions worldwide is another example. Of course, this second option did not work so well for the music download service Napster. Legal compliance is still a factor; yet these examples show how “non-compliance does not necessarily kill your business.”

Even though compliance is still a serious issue for data protection and privacy, the choice is no longer about withholding or disclosing. Instead, the choice is over who has access to your data. If one cannot get data back, one can at least know who has it and what they are doing with it.

Since strict compliance to all privacy laws online is no longer a realistic option, Jaccard recommends pushing for more anonymous “big data.” This, in theory, allows companies to collect data about online activity without tracing it back to a specific person. Another promising evolution attracting many corporations is to factor in the privacy restrictions from the outset of any project through “privacy by design.”

Jaccard also warned that going to court is not optimal for dealing with e-reputation issues. Though national libel laws may be helpful, it is often a slow process. From a legal perspective, this means it is “very hard” to redress the damage caused by a negative online campaign. A more successful approach may be to act through the terms and conditions of the platform on which the campaign took place.

The online world still presents a challenge for communication laws that were developed in the offline world. It is causing companies and countries alike to re-evaluate their legal strategies. Though legal compliance (or enforcement) may still be worth the expense, it might not be worth being on the top of the list.

In the online world, the value of legal advice is more about discussing risk assessment and mitigation strategies and how to best navigate the regulatory environments rather than support in implementing strict compliance programs.

James Côté is an intern at Intellectual Property Watch. He is in the final year of his J.D. from the University of Ottawa. He has a keen interest in IP as it relates to business and trade. To learn more about these subjects, he has worked as part of an IP Law Clinic helping technology start-ups and as president of the uOttawa International Commercial and Trade Law Students Association.