Surfing the Internet – Users Must be Vigilant and Prudent

On July 18, 2013, in the matter of Lachapelle c. Bell Canada¹, Justice Émery of the Superior Court of Quebec dismissed on the merits a class action brought on behalf of all the subscribers to an internet service offered by Bell Canada (“Bell”) via telephone modem and who were required to assume all costs related to the hijacking of their modem.

In dismissing the action, Justice Émery found that internet service providers cannot be held liable for risks assumed by their subscribers when visiting websites and accepting their terms and conditions of use, especially after having been warned of the risks associated with doing so. Users must therefore exercise caution, because ultimately they are solely responsible for their web surfing activity.

In addition to clearly illustrating that a judgment authorising a class action in no way prejudices the respondent’s defence to the action, this decision sheds new light on the degree of care incumbent on internet users.

Facts

Mr. Guy Lachapelle subscribed to Bell’s residential internet service in 2001. When he noticed in 2004 that two consecutive monthly bills for his service included long-distance telephone calls to various countries that he knew he did not make, he concluded that his modem had been hijacked. Such hijacking can occur when automatic dialling software is downloaded to the subscriber’s computer, either without the subscriber’s knowledge or after having accepted the terms and conditions of use of a website, and the software’s automatic dialer connects the subscriber’s computer to a website.

Mr. Lachapelle contacted Bell, and was informed that he alone was responsible for the payment of the charges for long-distance calls made from his telephone connection. Mr. Lachapelle accordingly decided to terminate his Bell subscription, and eventually a motion for authorization to institute a class action against Bell was filed.

In a judgment dated April 23, 2008, Justice Jacques A. Léger authorized the class action^2, which ultimately led to the hearing on the merits before Justice Émery.

The Court’s analysis

Over and above the many questions and issues to be dealt with on a collective basis that were identified by Justice Léger in his judgment authorizing the class action, Justice Émery readily identified the overarching question as being whether Bell or the subscriber was responsible for the materialization of risks associated with surfing the internet.

Following an analysis of the evidence, the Court noted the absence of any expert witness in support of the lead plaintiff’s claims and the strength of the technical evidence led by the defence, which included evidence of numerous warnings issued by both the internet service provider and the CRTC and the RCMP concerning the risks associated with accessing websites that insist on acceptance of their terms and conditions of use.

In the Court’s view, the service provider had implemented measures aimed at warning its subscribers of the risks involved in using the internet:

[TRANSLATION]

“Bell acted with due diligence in discharging its obligation to inform its subscribers of the risks inherent in surfing the internet, particularly the risks involved in downloading software that, unbeknownst to the subscriber, installs an automatic dialer.”

Drawing an analogy with accessing a highway system, the Court emphasized that it is the user’s responsibility to surf the internet with all due care, as the internet service provider has no control over its subscribers’ computer or what websites they visit.

While the Court did not extensively analyze the concept of an “external clause”, Justice Émery reasoned that Mr. Lachapelle was bound to pay the cost of any call made from his telephone connection because the evidence did not allow him to conclude that Mr. Lachapelle had not accepted the terms and conditions of use of the websites he visited and that his obligations in that regard were clearly stipulated in the “Terms of Service” applicable to his contract with Bell.

The Court accordingly concluded that Mr. Lachapelle had not discharged his burden of establishing that Bell was liable or had acted in bad faith. On the contrary, it found that Bell systematically notified its subscribers whenever it identified any untoward web activity, and that the subscribers’ obligations were clearly spelled out in their services contract.

Conclusion and comments

The Court dismissed the class action on the merits, concluding that an internet service provider. “[TRANSLATION] does not have an obligation of result and cannot guarantee that its subscribers will never fall victim to fraud when using their telephone connections.”

As internet use becomes more and more prevalent, Justice Émery’s dictum that “[TRANSLATION] vigilance and prudence are a web-surfer’s best protection” is more than just sermonizing; it amounts to a veritable rule of conduct.

This case is also of interest with respect to the burden of proof on parties to litigation involving “technology” issues, and the means that need to be utilized to establish the basis of their respective positions.