Electronic Trespass in Canada: The Protection of Private Property on the Internet

This paper argues that Canadian courts can, and should, adopt electronic trespass as a viable cause of action for the protection of property rights on the Internet. Of course, this conclusion presupposes that property rights in fact exist on the Internet. While American courts have accepted the existence of property rights on the Internet without any real controversy, a significant body of criticism has developed around American jurisprudence. Part III examines the critiques levelled against the assumption of property rights inherent in electronic trespass, and argues that there are property rights that need to be protected on the Internet. Part IV addresses the practical issue of whether electronic trespass is available at common law in Canada. Focusing on the tangible quality of electronic communications and the lack of requirement to show actual damages, this paper concludes that electronic trespass is a viable cause of action in Canada. Despite being a viable cause of action, Part V examines the concerns of the anticommons movement, and considers whether Canadian courts should forgo electronic trespass and adopt an alternative doctrine resembling nuisance. In rejecting such an approach, this paper concludes with a discussion of the importance of consent as a means of imposing rationality on the operation of electronic trespass, and questions the usefulness of legislative reform