Special Report: Open Public Data

City Plans to Update Website Acceptable Use Policy

The City of Hamilton website acceptable use policy currently prohibits third parties from publishing, copying, linking or otherwise making use of website content without prior written permission. Staff recognize this needs to change.

By Ryan McGreal
Published April 01, 2011

this article has been updated

This article violates the City of Hamilton's website Acceptable Use Policy. Among the many stipulations and restrictions in the policy is a blanket ban on linking to pages on the City website without prior written permission. The section reads:

Unless prior written permission is obtained from the City, the Content's owner and the City's licensors, You may not reproduce, publish, copy, link to, frame, tag, embed, merge, modify, recompile, license, distribute, sell, store in an electronic retrieval system, download (except by the browser of a single user) or transmit, in whole or in part, in any form or by any means whatsoever, be they physical, electronic or otherwise, the Portal and/or the Content.

If you're keeping track, you will notice that I've just committed another violation. In citing the relevant policy, I have copied content from the City website "in whole or in part", which is also prohibited.

The good news is that the City is aware of this and has plans to revise the policy. In response to a request for clarification on the policy, City Solicitor Peter Barkwell confirmed that it was written several years ago for the original myhamilton.ca site, and that city staff are "aware that the acceptable use policy may be outdated".

Noting that the myhamilton.ca has since moved under the control of Hamilton Public Library, Barkwell added that "a revamp" of the policy "is still at the preliminary stages."

In the meantime, Barkwell says he is "unaware of any ongoing enforcement issues arising out of this policy." He suggests that anyone who is concerned can contact the information services department, which is responsible for the City website.

Unfortunately, this presents another challenge. The information services web page does not actually list any contact information for anyone in the department.

On a recommendation from Barkwell, RTH contacted Glenn Brunetti, the manager of service delivery in the City Manager's office, to seek clarification on whether his office intends to start enforcing the Acceptable Use Policy.

In an email response, Brunetti confirmed: "The City will not be enforcing those provisions of the policy - nor has it in the 6-7 years that the policy existed."

Noting also that a review of the website policy is underway, Brunetti added, "We are looking at the City's site holistically and developing a single plan that ensures the top tasks that citizens are trying to do online are easy to do and accessible."

Staff are developing "consistent standards, metrics and modernized policies" for the site and will present a plan to council "in the coming months."

Uncharted Legal Waters

This seems ridiculous - after all, linking is the foundational technology of the world wide web - but the fact is that we are in uncharted legal waters.

The problem, in Canada, is that there is no legislation governing the legality of various internet-specific activities, like hyperlinking and so on. That has left the courts to decide how to handle conflicts over what is allowed and set legal precedents on a case-by-case basis.

A case in front of the Supreme Court of Canada right now hinges on whether linking to a web page constitutes citation or republication. In this case, the plaintiff has accused the defendant of defamation for linking to web pages the plaintiff argues are defamatory.

Previously, the Supreme Court of British Columbia decided that simply linking to a defamatory web page does not constitute defamation, unless the link is provided for the purpose of endorsing the defamatory material.

I am not a lawyer, but it seems to me that if the Supreme Court of Canada decides a hyperlink to a web page qualifies as republication, every link becomes not only a potential defamation liability but also, more worryingly, a potential copyright infringement. This would be catastrophic for a free internet.

In terms of linking to and using public data, another issue that may legally limit the City's ability to restrict what third parties do with information published on the City website is the Municipal Freedom of Information and Protection of Privacy Act. MFIPPA explicitly grants every person "a right of access to a record or a part of a record in the custody or under the control of an institution" as long as that record does not fall under a "limited and specific" list of "necessary exemptions" - in which case it would not be published on the City's website.

It seems ridiculous from a legal standpoint that one might have to file a a Freedom of Information request under MFIPPA to publish, let alone reference, legally public information that is already published on a municipal website.

Information "owned" by the City of Hamilton that is not specifically exempted from publication due to privacy issues is by law accessible to the public. I would be most surprised if an acceptable use policy on the part of the City that tries to restrict what the public can do with public information would hold up to a legal challenge.

Update: Glenn Brunetti has responded to RTH, and we have included his response in the body of this article. You can jump to the changed paragraph.

Ryan McGreal, the editor of Raise the Hammer, lives in Hamilton with his family and works as a programmer, writer and consultant. Ryan volunteers with Hamilton Light Rail, a citizen group dedicated to bringing light rail transit to Hamilton. Ryan wrote a city affairs column in Hamilton Magazine, and several of his articles have been published in the Hamilton Spectator. His articles have also been published in The Walrus, HuffPost and Behind the Numbers. He maintains a personal website, has been known to share passing thoughts on Twitter and Facebook, and posts the occasional cat photo on Instagram.


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By Taxman (registered) | Posted April 01, 2011 at 22:42:33

Well I'm glad they realize the website needs a major revamp, I haven't found that thing user friendly since the day it was launched.

I find the site is a labyrinth, with information hidden in places that I'm sure make sense to those involved in the city - but are counterintuitive to most other people.

I have been unable to find a calendar of events that provides a comprehensive overview of everything going on at city hall - rather it seems such events are posted sporadically on an ad hoc basis sprinkled across the website.

The search feature is particularly useless in my opinion, often returning documents from previous years that have long since been "spent", rather than newer versions of those same documents.

That's a list of the issues I can think of at present with the website.

Comment edited by Taxman on 2011-04-01 22:42:48

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By Dadeo (anonymous) | Posted April 02, 2011 at 09:28:17

Comments with a score below -5 are hidden by default.

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By Undustrial (registered) - website | Posted April 02, 2011 at 10:55:53

The list of "forbidden activites" on the site makes browsing it seem downright dangerous - if I open a PDF, am I committing a crime? How about if I print it? Save it? What if I copy and paste a bus schedule into an email for a friend?

The internet thrives on linking, copying and sharing. That's what it does, and that's what it is. This policy sounds like it was written in the days of typewriters and lithographs.

As for the enforcement issues, the fact that it has not been enforced doesn't mean it won't. I agree, it probably wouldn't win in court - but that's not the point. The City has large coffers for legal battles - I don't, and neither do most people here. If Ryan, Joey or Jelly were to really irk City Hall, this policy leaves a door open for going after anyone who's touched their website. It's a blank cheque.

Not that I expect them to try such a thing, especially not now (thanks Ryan). What's far more likely is that something actually worrisome may come up (ie: a spyware-ridden HSR scheduling app), and it'll be thrown out out of court thanks to a half-decent lawyer. I would never want to attempt to sue someone with it. What actually constitutes "misuse" of this data, and what doesn't? Repackaging and selling it? Publishing links to embarrassing reports? Where's the line drawn?

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By rednic (registered) | Posted April 02, 2011 at 20:04:50

Read EULA (end users license agreement) for any software / website ( ie Facebook) or anything ... it will make you want to live in a lead box, regardless of you current living accommodations. They re written by lawyers to prepare for the WORST case scenario. in the city of hamilton one would assume this would be something like the resale of assessment / tax info, since this is really the most important / valuable stuff they have.

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By Alan.ca (registered) - website | Posted April 03, 2011 at 14:11:05

I agree the policy for the City's web site is silly. I am currently serving as a citizen board member for CityHousing Hamilton. http://cityhousinghamilton.com I urged them to develop a new site when managing our content on the City run site was completely impossible. Under a separate site we were able to publish meeting minutes and agendas. If anyone has constructive suggestions for the CityHousing Hamilton site, I would be happy to read it.

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By Undustrial (registered) - website | Posted April 03, 2011 at 21:21:05

Whoever that moustached man is, he sure has an unnerving smile.

Comment edited by Undustrial on 2011-04-03 21:21:48

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By tempestinapot (anonymous) | Posted April 04, 2011 at 13:18:56

How is this a newsworthy article?

Almost every single corporate and governmental website have very similar terms in the boilerplate on their sites. And most of the educational and non-profit sites do as well.

The only time this is a problem is if the site in question attempts to enforce their flawed user policies in illegal or dumb ways.

Has the City of Hamilton done anything that you can take offense to? If not, quit giving people a hard time for no reason.

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By MattM (registered) | Posted April 04, 2011 at 15:45:15 in reply to Comment 61848

"Don't rock the boat".

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By FTLOG (anonymous) | Posted April 06, 2011 at 14:07:56 in reply to Comment 61818

insult spam deleted

Comment edited by administrator Ryan on 2011-04-06 15:12:11

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