Monthly Archives: December 2014

Moving on up (North) – Bringing your App, Website or Product to Canada

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“We want to start selling our [app/product/service] in Canada,” says your Digital business executive.  “Any legal problems we should know about?”   Selling an app, product or service in Canada can seem like an easy way for a US company to expand the market for, and revenues generated from, something developed for the US market.  However, there are a number of considerations to consider, both from a legal and business perspective.  Some of them include:

  • Localize for the Canadian Market. As an American, I imagine that Canadians can easily tell whether a product is one designed for the US market being offered in Canada, or is one designed for the Canadian market.  Apps, websites, and services should be localized for the Canada market.  Canadian English is different than US English, and localization something that should not be overlooked.  If there is address information collected or displayed through an app or corresponding website, they should support provinces, Canadian postal codes, etc.  Localization is more than just translation; the app, website or service should be reviewed (ideally by one or more Canadian employees) to identify any pages, language, or content that may need adjusting for a Canadian audience.
  • Bilingual Requirements. The official language of Quebec is French, and many other provinces recognize both English and French as official languages. Websites (and apps) in Quebec are required to be bilingual.  Even without that requirement, it’s a good idea for websites and apps to be bilingual in Canada given the significant number of French Canadian speakers in the country.  Consider translating your license/services agreement and policies into French.  If you make your agreements bilingual, consider using a “dual-column” format so the English and French versions appear next to each other.  Ensure any bilingual agreements contain a provision stating that the parties agree that controlling version of the agreement shall be in the English language.
  • Data Privacy.From a legal perspective, Canada has a much more stringent national data privacy law than the US does.  Under Canada’s national data privacy laws, affirmative consent is generally required by consumers for a company to process personal information from Canadian consumers. Many provinces have their own privacy laws for private entities and public bodies. In addition, certain provinces also have provincial data privacy laws that can impact US companies.  For example, British Columbia’s data privacy law governing public bodies prevents any public body in BC from using a cloud-based service that stores data outside of Canada. (This law dates to 2004 and was a backlash against US government access to data under the USA PATRIOT Act of 2001.)  While many BC entities, such as schools, have complained about this law, it’s still on the books in British Columbia.
  • Marketing Communications. In addition, sending commercial electronic messages can be trickier in Canada due to a more complex Canadian law called CASL (Canada’s Anti-Spam Law) that governs commercial electronic messages (not just emails).  We’d want to look at that to see if it had an impact.  For more information, see my earlier post on preparing for CASL compliance.
  • Branding and IP. Companies should look at their branding, trademarks, and other IP used in or in connection with their app, websites, and services.  US trademark registrations don’t help in Canada if someone else is already using an identical or similar brand name in Canada. Dropping your US-branded app into the Canadian market could result in a cease-and-desist letter, or a lawsuit brought in Canadian courts. Patent protection in the US are not enforceable in Canada; you’d need to file Canadian registrations to obtain similar protections.
  • Other Considerations. Other considerations include looking at whether there are any export requirements or restrictions on exporting your product to Canada; whether NAFTA (the North American Free Trade Agreement) comes into play if there are any physical goods being sent to Canada; and ensuring you are complying with any local, provincial, or national tax requirements that may apply.

Before moving on up north, business teams should consider performing a cost/benefit analysis of the potential ROI of entering the Canadian market, evaluating these and other factors, to determine if adapting an app, website and/or service to the Canadian market is a sound business decision.

Progressive Reduction, Progressive Disclosure and Legal Disclosures – Incompatible?

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Progressive Disclosure and Progressive Reduction are two common user experience (UX) techniques in website and application design.  Both reduce the amount of information provided by default to a user, which can be very useful when you have a small amount of screen real estate available on a website or in an application or striving for a clean user interface.  Both are designed to favor selective content disclosure over mouse clicks (it takes more clicks to view all of the information, but many people may not need to see the additional information and therefore won’t need the clicks).

Progressive Disclosure stack ranks information, features and options by usage, and breaks the display of the information, features and options onto multiple screens so that only the most commonly used or popular items appear by default.  The intent of Progressive Disclosure is to simplify the user interface and avoid overwhelming a user with information, features and options on a single screen (which results in a bad user experience).  Common examples of Progressive Disclosure in apps and on websites are “Learn More” links and expandable/collapsible data elements that are collapsed by default but expandable by the user. An example of Progressive Disclosure in the legal context is a “layered” privacy policy with an initial summary and links to the longer, full privacy policy.

Progressive Reduction uses user profiles and other information or options to progressively reduce content elements based on time or usage.  As the user becomes more familiar with the website or app (or as more time passes), the design can be simplified and reduced, as the assumption is that the user will still understand what to do.  For example, suppose a website has a prominent “Change Your Preferences” button with an icon.  As a user becomes more familiar with that button, it can be reduced to a “Preferences” button with an icon, and then just the icon.  Another example is expandable/collapsible data elements that are expanded by default, where if the user collapses them the website or application will remember the user’s preference and collapse them by default thereafter.

The Federal Trade Commission and state Attorneys General expect websites and apps to have “clear and conspicuous” and “legible and understandable” legal disclosures to avoid deceptive trade practice claims.  Requiring a click to access important disclosures is neither clear nor conspicuous to a user.  Thus, the concepts of Progressive Disclosure and Progressive Reduction seem to conflict with proper legal disclosures.  So can they coexist?  The answer is yes, but not for (1) the critical elements of the initial disclosure, and (2) information you are legally obligated to present to the user.

An initial website legal disclosure (e.g., special terms regarding a product, automatic renewal terms, etc.) must be clear, conspicuous, legible and understandable, as the FTC and state AGs expect. Progressive Disclosure and Progressive Reduction should not be used for the initial disclosure, and should never be used to break apart a legal agreement such as click-through terms. (If space is a concern, an attorney should try to make the disclosure as concise as possible, or use a scroll box with a greyed-out checkbox for consent or greyed-out “continue” button until the consumer scrolls to the bottom of the scroll box.)  For legal policies posted on a website, using a layered approach is a common way to apply principles of Progressive Disclosure.

In some cases, there are supplemental references to or confirmations of the initial disclosure, such as in an order confirmation email, or online notices of a policy change previously communicated by email or postal mail.  The supplemental references to, or confirmations of, a website legal disclosure are generally used to remind the consumer what they have agreed to, which can help defend against a claim that the disclosure was not clearly or conspicuously provided.  In some circumstances, such as with auto-renewing subscriptions in California, the full initial disclosure must be provided in the supplemental disclosure.  However, where there is no legal requirement to do so, Progressive Disclosure can be applied to the supplemental disclosure as long as the terms initially displayed are the ones for which the consumer would most expect to be reminded, i.e., the most critical terms.

A strong partnership with the User Experience team is critical to ensuring that legal disclosures are properly presented in websites and apps.  Demonstrating an understanding of UX concepts, and how to strike the right balance with legal disclosure requirements, strengthens their view of counsel as a valued business partner and problem solver.