JURISDICTION IN CYBERSPACE BY C. IAN KYER FASKEN MARTINEAU DuMOULIN LLP. 1. Choice of law clauses solve the jurisdictional dilemma

Transcription

1 JURISDICTION IN CYBERSPACE BY C. IAN KYER FASKEN MARTINEAU DuMOULIN LLP My job is to help guide you through the conflict of laws maze as it applies to dealings over the Internet. Conflict of laws is central to e-commerce because the Internet is international and the world s laws are national in nature. E-commerce operates in a world without boundaries but commercial laws operate in a world where boundaries are of extreme importance. While e-commerce is giving new prominence to this area of law, private international law is not a creation of cyberspace. It is a series of national rules and principles that have been developed over centuries to assist legislatures and courts in dealing with three questions that arise in transactions with one or more international or at least multi-jurisdictional elements. Which courts may take jurisdiction over the parties or the transaction? Which laws apply? When will the courts of one jurisdiction enforce a judgment rendered by the courts of another jurisdiction? Before trying to offer some guidance in answering these questions I want to dispel some popular myths. Some common myths 1. Choice of law clauses solve the jurisdictional dilemma Many people believe incorrectly that the parties to a transaction may, through a choice of law clause, choose the laws that apply to their dealings with each other. They believe that parties may contract out of the application of local laws. This is true only in a very limited sense. It is correct that many jurisdictions permit parties to an international or multijurisdictional contract to choose the laws that apply to their contract in the absence of overriding public policy. This means that the parties may choose the contract law of one jurisdiction to be applied to their contract. Contract law deals with such matters as the formation of the contract, the interpretation of the contract, the enforcement of the contract, the breach of the contract and any damages that might be suffered. The choice of law does not mean that tort claims will be dealt with under that law or that intellectual property created by the parties will be assessed under that law or that consumer protection laws will be determined by that choice. These laws apply in situations where third parties are involved. As well, some of these laws are ones in which the state has an interest and the application of these laws either expressly or by implication cannot be contracted out of by the parties. 2. There are separate rules for determining jurisdiction in Cyberspace To read some papers on jurisdiction and the Internet, one would think that the only cases and laws that one needs to consider in looking at this question are cases dealing expressly with Internet disputes. That is simply not true. There are some special laws that have been passed dealing with the Internet but the general rule is that this method of doing business is subject to the same general rules and principles as other business methods that have an

2 - 2 - international or multi-jurisdictional element to them. You need to look at the private international law rules and principles of each relevant jurisdiction and not just the cases that deal expressly with e-commerce or the net. 3. Jurisdiction for e-commerce is determined by where the server is located Many business people think that the laws that apply to their e-commerce operations are determined by where they have their server. This may or may not be a relevant fact to be taken into account in determining jurisdiction. It depends upon the context. 4. There is a single set of rules to determine jurisdiction This statement is false for three quite different reasons. First, despite the fact that we talk of private international law, there is a not a single, applicable, international law. There is not even one set of rules and principles applied around the world. Perhaps the better term to use is conflict of laws because even the rules for dealing with conflicting laws are themselves in conflict. What we have are a series of national approaches to how to answer our three questions: which court has jurisdiction; which laws apply; where will judgment be enforced? Second, there are countries like Canada that are multi-jurisdictional. Although the Canadian Supreme Court has laid down some national principles in cases like Morguard Investments 1, we do not have a single approach to conflict of laws across Canada. Third, even in a single jurisdiction like B.C., there are separate rules and principles that govern conflicts in contract, tort, consumer protection and the like. An Overview of Jurisdiction under Private International Law Context - why does jurisdiction matter? As I hope is becoming clear, context is everything in looking at jurisdiction and the Internet. What are the international elements in the case at hand and what is the question that we are seeking to answer? Are we asking will the court in the jurisdiction of the customer take jurisdiction over a dispute between an online supplier and a customer? Or are we asking do the Criminal Laws of Oregon apply to an offshore gambling casino? The answers may well be different but what we need to realize is that the process of determining the answers and the relevant factors in reaching the answer are also likely to be different. When will courts take jurisdiction? This is a simple question to ask but a very complex one to answer. Generally courts will take jurisdiction if there is a substantial connection between the jurisdiction and either 1 Morguard Investments v. De Savoye (1990), 76 DLR (4 th ) 256.

3 - 3 - the people involved or the subject matter of the dispute. The courts will take jurisdiction over people resident or domiciled in their jurisdiction (or ones who have voluntarily submitted or attorned to the jurisdiction) as well as over property situate in their jurisdiction. They may also take jurisdiction where an accident occurred or damages were suffered in the jurisdiction. To get an idea of the breadth of this jurisdictional reach look at the rules for service out of your jurisdiction. When foreign corporate defendants are involved, the question often centres on whether the defendant is carrying on business in the jurisdiction or, to use an American expression, availing itself of the jurisdiction. It is this question that has been looked at in a number of US decisions involving e-commerce and the Internet. Does simple use of the net constitute submission to each jurisdiction where access is possible or is more active exchanges with uses in the jurisdiction necessary? I would refer you to an excellent paper by Prof. Michael Geist entitled Is There A There There? Toward Greater Certainty For Internet Jurisdiction 2 which sets out the various approaches the Courts have taken in answering this question. After the courts are satisfied that they can take jurisdiction they are sometimes asked to consider whether they should do so. This question is often dealt with under the rules of forum non conveniens. When will courts enforce a foreign judgment? The B.C. Court of Appeal decision in Braintech v. Kostiuk 3 gives us some idea of when a court will enforce the judgment of another jurisdiction. Kostiuk was alleged to have used the Internet to transmit and publish defamatory information about BrainTech. Braintech obtained a default judgment in a District Court in Texas against Kostiuk and then commenced an action on this judgment in the Supreme Court of British Columbia. After a summary trial Braintech obtained a favourable judgment which was appealed. One of the issues in that appeal was whether there was a real and substantial connection between Texas and the parties or the defamation alleged to have taken place in that state. Kostiuk in his statement of defence denied service in the Texas action; denied any connection with Texas; denied he had attorned to the jurisdiction and alleged fraud on the Texas court. He sought a declaration that the Texas court acted without jurisdiction and an order dismissing Braintech's claim. In Texas, a non-resident does business in the state if the non-resident: (1) contracts by mail or otherwise with a Texas resident and either party is to perform the contract in whole or in part in this state; (2) commits a tort in whole or in part in this state; or (3) recruits Texas residents, directly or through an intermediary located in this state, for employment inside 2 articles/16_3/geist/geist.pdf 3

4 - 4 - or outside this state. Braintech was not a Texas corporation and did not have operations in Texas. It was alleged, however, that the tort was committed there. The B.C. appeal court stated: It is apparent the "real and substantial connection" relied upon for the assumption of jurisdiction by the Texas court is the alleged publication there of a libel which affected the interests of resident present and potential investors. This is true only if the mode of communication through the Internet supports this conclusion. In the circumstance of no purposeful commercial activity alleged on the part of Kostiuk and the equally material absence of any person in that jurisdiction having "read" the alleged libel all that has been deemed to have been demonstrated was Kostiuk's passive use of an out of state electronic bulletin. The allegation of publication fails as it rests on the mere transitory, passive presence in cyberspace of the alleged defamatory material. Such a contact does not constitute a real and substantial presence. On the American authorities this is an insufficient basis for the exercise of an in personam jurisdiction over a non-resident. Although the case is one in which enforcement was refused in B.C. It is interesting to note that the Texas Court took jurisdiction despite the tenuous link to that State, it is also worth noting that had there been a real and substantial connection with Texas, under Canada s Morguard rule that provides for deference for foreign judgments, the B.C. court would have enforced the judgment of the Texas Court. A Case Study - The Many Sides of the Online Gaming Issue This is a subject that can be very intimidating in the abstract. Let s look at a case study and how these questions are dealt with in real life. Let us suppose that we are approached by a corporate client that operates an online gambling casino. The corporation is incorporated in Antigua and it holds an online gaming licence from Antigua. Its head office is in St. John, Antigua. The individuals who run the business spend time in Canada and in Antigua. The gaming software was developed and is maintained in Canada, although it uses a back-office programme developed for the gaming industry by a South African company with offices in the UK. The licence agreement for this back-office programme does not contain a choice of law clause. Our corporate client has servers in Antigua but to better serve the North American market it has a mirror site and download servers on the Kahnawake Indian reserve in Quebec. Its website contains a set of terms and conditions which state that Antiguan law applies and that the gaming service is offered only in jurisdictions where online gaming is legal. It has customers around the world, including some in each of Canada s provinces, although the bulk of its business is done with US betters. You are asked to advise regarding the following: 1. Do Canadian laws apply to the operation and if so, is the operation in compliance with Canadian criminal law? If not, can it obtain a licence from one of Canada s provinces to operate its casino?

5 Can the corporation be sued under the State RICO statutes in such antigaming States in the US as New York, Minnesota or Oregon? 3. What laws govern the contracts between the site and its customers? 4. Does the site have to be offered in French? This is not a far fetched academic situation. There are clients like this and all of these questions have recently been before the courts. 1. Do Canadian laws apply? The Star Data Case and the PEI reference The Regina v. Starnet Communications International Inc. 4 decision came down last year in British Columbia. Even though it involved a guilty plea with little judicial reasoning, it is helpful in that it sheds some light on how Canadian criminal law may apply to an online gambling operation. Starnet Communications International Inc. ( SCI ) was incorporated in Delaware. Through a number of wholly owned subsidiaries, it conducted its operations from a location in Vancouver, B.C. One of these subsidiaries was incorporated in British Columbia. The other subsidiaries were incorporated in Antigua, where online gaming is legal and where SCI had an online gaming license. SCI had developed software in Canada to facilitate online gaming and had issued several licenses to third party licensees that provided online gaming to Canadians. The police using false identities and credit cards engaged in online gaming offered by SCI s licensees. Their winnings were received in the form of credits to the credit cards and also by cheques. SCI officers, located in Vancouver, signed some of these cheques and mailed them from their Vancouver offices. SCI s Vancouver operation consisted of computer servers and computer applications, operating on computer systems, which when accessed by the Internet, enabled persons to engage in gambling or betting. Users wanting to wager had to access these B.C. based servers first before being redirected to begin any gambling offshore. Many of the gaming websites developed by SCI s employees were hosted in British Columbia. Users downloaded software to their PCs from these B.C. sites. The server s side software and the modification of this software were also in Vancouver. The registration and control of the domain name servers for many of the licensee pages were also controlled and physically located in Vancouver. As the police investigation revealed, the role of the Canadian subsidiary and its operations in Vancouver was pivotal in this enterprise. Approximately 100 people were 4 (August 17, 2001), Vancouver (B.C.S.C.) [hereinafter Starnet]. A copy of this transcript was received from Interactive Gaming Council Canada.

6 - 6 - employed by the Canadian subsidiary and were located in offices in Vancouver. Only about four employees were working offshore. The Canadian subsidiary developed the server and client software packages, which enabled users to engage in online gambling. Further, they were responsible for the ongoing administration of the services, applications and computer systems. Canadian were far less important to the profitability of the operation, representing only four per cent of online gamblers in Nevertheless, and quite significantly, SCI did allow Canadians to gamble on its site. SCI had several Canadian residents who held multiple positions in the various companies. These people were determined to be the corporation s controlling mind in the various aspects of the enterprise. This enabled the Crown to allocate corporate criminal liability under the alter ego theory. Charges were laid in A deal was struck at some point between SCI and the Crown and SCI pled guilty to a charge under Section 202(1)(b) of the Code. 5 Section 202(1)(b) of the Code Section 202(1)(b) of the Code makes it an offence to keep or knowingly allow to be kept in any place under his control any device for the purpose of recording or registering bets or selling a pool, or any machine or device for gambling or betting. 6 The required elements of this offence are: keeping, and the presence of a device for gambling or betting. A device must be one for the purpose of gambling or betting. Starnet interpreted device to include all the computer servers, applications and systems that clients would have to access to begin any gambling. 7 SCI s devices were kept in Vancouver. To keep does not simply mean to possess. It means possession that results in making the gambling machine available for use by the public. 8 This means that the device must be somehow useable by the public for the purposes of gaming. The availability to the public can be direct or indirect. 9 In Starnet, the servers and applications in question were kept in Vancouver. These same servers and websites made the gambling activities available to Canadian users. This qualified as keeping. Although not explicit in the Code, it is implied that the gaming has to be available to the public in Canada. If the police investigation had not been able to show that Canadians 5 The individuals were probably not prosecuted personally most likely as a result of the deal. 6 Code, supra note It was only after contacting the Vancouver based servers that clients could be forwarded to the offshore gaming servers. 8 R. v. Volante (1993), 14 O.R. (3d) 682 (Ont.C.A.) [hereinafter Volante]. 9 Volante, ibid.

7 - 7 - could gamble with SCI, there probably would not have been a case. The Code provisions, taken as a whole, prohibit the provision of unlicensed gambling in Canada. It is questionable whether the keeping of gaming devices in Canada would have been an offence if these devices had not been used to making gaming available to the Canadian public. Subsequent to being charged but prior to the hearing, SCI purportedly changed the structure of its operations in order to comply with the Code. SCI was placed under the umbrella of a British holding company. The new company, as of May 2001, was named World Gaming, with its headquarters in London, England. Completely new management was put in place. 10 A new management committee was established in Antigua. A new company called Starnet Systems was created to operate all the gambling activity from Antigua. Starnet Systems handled all the day-to-day gambling and financial activities. The devices that allowed punters to engage in gambling were moved out of Canada. Only one element was said to remain in Canada. This was a company called Inphinity Interactive, which developed software for lawfully operated offshore gambling operations. Defence counsel submitted to the Court that there was nothing illegal with respect to Inphinity s operation. The Court and the Crown gave no indication they disagreed. 11 To comply with the Code, all devices and the controlling mind of the corporation were moved offshore. Links to Canada were significantly reduced. The company also ceased offering access to Canadians. These changes seemed to satisfy the Crown and the Court and no action has been initiated against World Gaming. 12 In essence, Starnet indicates that an online gaming operation that is unlicensed in Canada but has sufficient connections to Canada may be successfully prosecuted under the Code. Before the restructuring, SCI s connections to Canada were indeed substantial. The devices, the controlling mind, the majority of the staff and services were located in Vancouver and gaming services were available to Canadians. To relieve itself of criminal liability, SCI had to restructure itself in a way that reduced its connections to Canada significantly. From the facts of the Starnet case, the resulting changes SCI made to its corporate structure and through our analysis of the Code, perhaps we now have some idea as to how such a company should structure itself to comply with the Code. To state it simply, the safest approach 10 In May 2001, SCI announced the appointment of Michael Aymong as its President and CEO. See, Starnet Communications appoints new CEO (25 May, 2001), online: World Gaming homepage < (last accessed 16 October, 2001). 11 Since this decision, World Gaming has also established a sales and marketing office in Toronto. See, Interview with Michael Aymong (6 July, 2001), Wall Street Reporter, online: Wall Street Reporter < (last accessed 16 October, 2001). 12 This is to the authors knowledge.

8 - 8 - is to reduce or eliminate all connections with Canada. All download, database and gaming servers should be located in a jurisdiction where it is lawful. If all connections cannot be severed with Canada, then an online gaming operation should bar all Canadians from access to the gaming activity. If no Canadians can gamble or bet, there is likely no offence under the Code. There would be no control of illicit funds and no unlawful agreements to purchase or sell gaming privilege in support of an illegal gambling operation in Canada. The Code serves to protect Canadians and without any harm to them, there would not likely be any prosecution. Care should also be taken as to where management resides and decisions are made. If management resides in Canada and decisions are made here, it may be argued that the controlling mind of the operation is in Canada. Some guidance in the application of these various prohibitions can be gained by a study of Section 207(1)(h) of the Code. 13 This Section states: Notwithstanding any of the provisions of this Part relating to gaming and betting, it is lawful (h) for any person to make or print anywhere in Canada or to cause to be made or printed anywhere in Canada anything relating to gaming and betting that is to be used in a place where it is or would, if certain conditions provided by law are met, be lawful to use such a thing, or to send, transmit, mail, ship, deliver or allow to be sent, transmitted, mailed, shipped or delivered or to accept for carriage or transport or convey any such thing where the destination thereof is such a place. 14 Section 207(1)(h) creates an exemption for the printing of information in Canada relating to gaming and betting that is to be exported and used in a place where it is legal to do so. The exemption, although narrow in scope, suggests that it is not considered to be contrary to public policy to carry on certain activities in Canada in support of a lawful offshore gaming operation. The exemption in Section 207 and the SCI restructuring suggest that certain aspects of such an operation, such as software development and perhaps advertising, can remain in Canada with some degree of legitimacy. A company, which merely develops the software for lawful offshore online gaming operation, is not likely in violation of the Code. 13 Ibid. 14 Ibid.

9 - 9 - What about sheltering behind a provincial gaming licence? This does not seem to be a valid option. In the Reference Re Earth Future Lottery 15, the Lieutenant Governor in Council of Prince Edward Island asked the PEI Supreme Court whether an online lottery known as the Earth Future Lottery ("the Lottery") conducted, managed, and operated by Earth Fund a Canadian non-profit, charitable corporation, pursuant to a license granted by the PEI Provincial Government would be lawful under the gaming provisions of the Criminal Code. The Earth Fund proposed to solicit offers to purchase tickets and accept and fulfill those subscriptions from permitted purchasers via its Internet server located in Prince Edward Island and by means of tollfree or other telephone lines. The server by which all lottery related sales transactions were to be conducted and managed, was to be physically located in the city of Charlottetown, P.E.I. Access to the service would be available through the Internet. The court noted that Both Section 3.3 of the Rules and Regulations and Section 2.3 of the License, provide that the transaction of purchase and sale shall be deemed to occur within the Province of Prince Edward Island and shall be governed by the laws in effect in Prince Edward Island. Section 12.2 of the Rules and Regulations further provides that the transaction of purchase or sale of all tickets of the lottery shall be deemed to occur within the Province of Prince Edward Island and shall be governed by the Criminal Code (Canada) and the laws of Prince Edward Island. The relevant provision of the Criminal Code, section 207, states: Notwithstanding any of the provisions of this Part relating to gaming and betting, it is lawful (b) for a charitable or religious organization, pursuant to a license issued by the Lieutenant Governor in Council of a province or by such other person or authority in the province as may be specified by the Lieutenant Governor in Council thereof, to conduct and manage a lottery scheme in that province if the proceeds from the lottery scheme are used for a charitable or religious object or purpose; The Court pointed out that the Criminal Code is a remedial statute and is to be given such fair, large, and liberal construction and interpretation as best ensures the attainment of its objects. Parliament does not happily abide gaming activities of any sort in Canada. The little it tolerates, it does so grudgingly. Although s. 207 allows some tightly circumscribed exceptions to s. 206, it too contains a broad prohibition. Thus, even permitted lotteries must strictly adhere to the limits imposed by the terms and conditions of s In deciding that the lottery could not be licensed by PEI, the Court reasoned as follows: In order for a lottery to be lawful under s-s. 207(1)(b) it must, be conducted and managed in the province. A key aspect of the Earth Future Lottery is its proposed use of the internet as a means of accessing the global market and having persons physically located outside Prince Edward Island participate in the lottery using its interactive website through their home 15 IN THE MATTER OF A Reference from the Lieutenant Governor in Council pursuant to section 18 of the Supreme Court Act, R.S.P.E.I. 1988, Cap. S-10, regarding the Earth Future Lottery and section 207 of the Criminal Code of Canada, R.S.C. 1985, c. Cap.C-46 [2002] P.E.I.J. No. 34 Docket: S1-AD PESCAD 8

10 computers the intention is to conduct a lottery in the worldwide market from headquarters and through infrastructure based in Prince Edward Island. However, conducting a lottery "from" Prince Edward Island is not the same as conducting it "in" Prince Edward Island. Subsection 207(1)(b) requires that the lottery scheme be conducted and managed in the province, not just from the province. The global market extends far beyond the boundaries of this province and is therefore outside the territorial limitation imposed by s-s. 207(1)(b). Subsection 207(1)(b) does not authorize the Lieutenant Governor in Council of Prince Edward island to license a charitable organization to conduct or manage a lottery scheme from the province. It only authorizes the granting of a license to conduct and manage a lottery in the province. For a license to be validly issued under s-s. 207(1)(b), it would have to require the licensee to conduct the lottery in the province and not merely from its place of business in the province. There is no authority under s- s. 207(1)(b) to issue a license authorizing a licensee to conduct a lottery in the global village from its place of business in the province. Note that the attempt by Earth Fund to fit within the legislative framework through its terms and conditions on the website was ineffective. 2. Class actions in US currently pending There are currently a number of class actions pending in the US against members of the online gaming industry. Most are State RICO actions. RICO is short for Racketeer Influenced and Corrupt Organization. These RICO statutes are aimed at racketeering enterprises and provide for seizure of profits and treble damages. Let s take as an example the action brought in Clackamas County, Oregon by Cathy Buchal on behalf of herself and other citizens of Oregon who have been preyed upon by the online gaming industry. 16 Her complaint alleges that various online casinos together with financial intermediaries have been carrying on the illegal business of gambling in Oregon. None of the gaming defendants are incorporated or have offices in Oregon nor do they have any servers in the State. What is alleged is that they are carrying on business in Oregon by virtue of the accessibility of their servers to Oregon citizens, many of whom have downloaded the gaming software onto their computers thereby turning those computers into illegal gaming devices operated in the State by the gaming companies contrary to criminal law. The defendants are also said to have carried on business in the State by communicating with Oregon residents by and seeking to collect gaming debts from them. While the action is still pending, initial indications are that the Oregon court will take jurisdiction over at least some of the defendants. 17 Interestingly Oregon has passed legislation prohibiting the collecting of online gaming debts in the State. The legislation, however, makes the Buchal action more difficult 16 Case No. CCV See also Joel M. Schwarz, The Internet Gaming Fallacy Craps Act

11 rather than less difficult to maintain since it exempts from RICO actions financial institutions that do not themselves conduct online gambling. 3. Online supplier and its customers what laws govern? Most e-commerce sites include terms and conditions that specify which laws govern the supplier-customer relationship. Some also specify the forum where disputes are to be brought. Are these enforceable contracts? In 1999 the Ontario Courts in Rudder v. Microsoft Corp. 18 were asked by Microsoft to enforce a choice of forum clause in the online terms and conditions for MSN, an online service, providing, inter alia, information and services including Internet access to its members. The plaintiffs brought a class action, arguing that Microsoft had breached the MSN Member Agreement. Potential members of MSN were required to electronically execute this agreement prior to receiving the services provided. Each Member Agreement contained a provision stating that the Agreement was governed by the laws of the State of Washington, U.S.A., and providing for consent to the exclusive jurisdiction and venue of courts in King County, Washington, in all disputes arising out of or relating to the use of MSN or an MSN membership. The Court noted that the plaintiffs were suing for breach of the Member Agreement and could not therefore argue that the agreement was not enforceable. They could not therefore avoid the forum selection clause. The Court stated: Forum selection clauses are generally treated with a measure of deference by Canadian courts. Madam Justice Huddart, writing for the court in Sarabia v. "Oceanic Mindoro" (1996), 4 C.P.C. (4th) 11 (B.C.C.A.), leave to appeal denied [1997] S.C.C.A. No. 69, adopts the view that forum selection clauses should be treated the same as arbitration agreements. The Court commented on the Member Agreement stating that it met the requirements for an enforceable agreement: The terms are set out in plain language, absent words that are commonly referred to as "legalese". Admittedly, the entire Agreement cannot be displayed at once on the computer screen, but this is not materially different from a multi-page written document which requires a party to turn the pages. Furthermore, the structure of the signup procedure is such that the potential member is presented with the terms of membership twice during the process and must signify acceptance each time. The Court noted that in determining whether it should exercise its discretion and refuse to enforce a forum selection clause in an agreement, the factors to considered are: (1) in which jurisdiction is the evidence on issues of fact situated, and the effect of that on the convenience and expense of trial in either jurisdiction; (2) whether the law of the foreign country applies and its differences from the domestic law in any respect; 18., [1999] 2 C.P.R. (4th) 474 (Ont.).

12 (3) the strength of the jurisdictional connections of the parties; (4) whether the defendants desire to enforce the forum selection clause is genuine or merely an attempt to obtain a procedural advantage; (5) whether the plaintiffs will suffer prejudice by bringing their claim in a foreign court because they will be (a) deprived of security for the claim; or (b) be unable to enforce any judgment obtained; or (c) be faced with a time-bar not applicable in the domestic court; or (d) unlikely to receive a fair trial. 4. Does the site have to be offered in French? The Québec (Procureur général) c. Hyperinfo Canada Inc Case 19. The Quebec Charter of the French Language, 20 (the Charter ) may also apply to our gaming website since our corporate client arguably has an establishment (i.e. the Kahnawake server) in the Province of Quebec. Section 52 of the Charter states that catalogues, brochures, flyers, commercial directories and any similar publications must be drawn up in French. These publications may also be drawn up in a distinct version in another language if the presentation of the French version is as easily accessible and of at least equal quality as the version in the other language. The Office de la langue française (the regulatory body in charge of administering the Charter) has taken the position that Section 52 of the Charter also applies to web sites operated by an enterprise having an establishment (i.e. an address) in the Province of Quebec. This position has been recently confirmed by the Court of Quebec. 21 The same decision also held that as Section 52 of the Charter concerns public order, it cannot be waived contractually. Here is an example of purposive interpretation. The Court gave special attention to the fact that there was a physical presence, an office, in the Province of Quebec, even though the website in question expressly stated that the website was not intended for or available to residents of Quebec. Conclusion As we can see, context is everything in determining which courts have jurisdiction; which laws apply and whether the courts will enforce a foreign judgment. Each situation needs to be looked at in light of the jurisdictions involved, the nature and purpose of the 19 Québec (Procureur général) c. Hyperinfo Canada Inc., C.Q. (chambre criminelle), , , R.E.J.B (le juge Benoît) 20 R.S.Q., c. C Attorney General of Quebec v. Hyperinfo Canada Inc. (November 1, 2001), Hull (C.Q.) [unreported].

13 laws in question and relevant public policy. As seen in the PEI reference, the B.C. criminal prosecution and the Quebec language case, the court when faced with the interpretation of a statute based on a broad public policy will be inclined to interpret the law to best serve that public policy.