Mar 17, 2015

Inactions, Omissions and Signal Piracy - issues of business ethics and tort law?

Videotron, s.e.n.c. c. Bell ExpressVu, l.p., 2015 QCCA 422 (CanLII)

The ongoing litigation between Bell, Videotron and other signal providers over the Bell corporation's alleged negligence in blocking the theft of its satellite signal, to the detriment of competitors in the marketplace, offers a unique opportunity for further questions lines of inquiry into Quebec civil law and negligence for acts of omission, and questions of business ethics in general.

On the surface, there is the observation from the trial level decision that under 1457 CCQ that simple acts of omission by an economic actor may render someone liable by their mere inaction, in this case by allegedly not taking effective measures to block signal piracy on a timely basis. This may be a point of comparison with the question of the "duty of rescue" in the common law, where positive duties of action to rescue another tend to be only exceptionally enforced in the common law.

On a point of business ethics, leaving aside the standards applied by the civil law to commercial morality, many libertarian and utilitarian theorists may possibly argue that there is no particular duty of loyalty to other commercial actors in a competitive marketplace. On this utilitarian/libertarian thesis, absent fraud or intentional interference in the contractual relations of the other company, they might possibly argue that it is not the role of the court system to police the marketplace by imposing civil liability upon a company for its alleged negligence in enforcing its own intellectual property rights, and that any such duty might best be imposed by narrowly tailored legislation or regulation.

There may be other points of research open to debate here --- whether or not this connects with the well known doctrine of "abus de droit" in civil law, wherein it is considered tortious behaviour to use one's legal rights in a way to cause economic loss to another party, depending upon the fact situation. This may possibly have been an alternate theoretical basis for this decision or may help to reinforce its conclusion as a matter of the traditions of the civil law in imposing a standard of reasonable commercial behavior in the marketplace, even due to inactions.