However, all we know from the factual description is that he used a deep link to access Dell’s website. Though the SCC used the word ‘circumvent,’ I nevertheless think it was reasonable in the circumstances for him to think that it was a real offer given the nature of Dell’s site and the nature of the quick product turnover and price reductions in the computer industry. As such, without more evidence, my presumption would be that Dumoulin had an honest intent.

In the end, given the result upholding the mandatory arbitration clause in the contract of the case, I suppose this is an issue that will be left for the arbitrator to decide.

It is clear that Dell didn’t mean to offer Dumoulin the price he tried to get the handheld for.

In both common law and civil law systems, you can’t “accept” an offer you know the other party didn’t intend to make.

On the other hand, at least in the common law, you can accept an offer a party didn’t intend to make, so long as it was reasonable in the circumstances to think it was a real offer. I don’t know enough about the civilian view of this to be sure whether it would be the same in Quebec.

The “circumvention” language sounds like Dumoulin knew that the lower prices were mistakes. If that’s the case, then it does sound morally suspect to try to take advantage of it.

My omission of that fact is reflective of my view that Mr. Dumoulin’s actions were not as reprehensible as you would make them seem: since when is deep-linking to a page an act of fraud? All the links in my post above were deep-links to their respective websites. Does that make me guilty of reprehensibly bypassing the main page’s navigational system? I hope not.

This is especially true of Dell’s website where there are a myriad of prices that shift almost daily (It’s like purchasing plane tickets). Though you could enter Dell’s website via the main page and pay their sticker price, you’d be wise to ask around to see if any of your friends have a special link to a ‘deals’ page that was sent via a promotional email. As well, there are links to corporate pages that will give possibly yet a better price. All of these pages, so far as my experience goes, are valid prices that Dell would honor, so long as one can get a hold of a link and execute that transaction. (You can even negotiate a price with them if you call them.) Thus, considering this is the way that Dell runs their business, I’d contend that Mr. Dumoulin did nothing that was morally wrong by deep-linking to a page on their site that has a better price

While noting that real-world analogies to internet transactions are almost always inadequate to some degree, I’d contend that his “cirumvention” is only circumvention in the sense that avoiding a traffic jam is a ‘circumvention’. That is, that the act of copying and pasting a link doesn’t carry with it any of the fraudulent intent that you suggest. In your analogy, I’d contend it’s more like he walked into the store, saw an obscure display rack with an item that is normally very expensive on sale for really cheap, thought it was a very good deal, and decided to purchase it. I think your analogy is more apt if he hacked into the site, changed the price, and then executed the transaction.

In short, my view of the facts in Dell is that Dell had the technological ability to prevent pages from being accessible – their failure to take down that page, though exploited, was their own error, which shouldn’t be blamed on Mr. Dumoulin.

” … it might still be useful to point out the factual circumstances giving rise to Dell … “

Any particular reason why you chose not to mention this little tidbit, fortunately set out in the headnote?

“The Dell company sells computer equipment retail over the Internet. It has its Canadian head office in Toronto and a place of business in Montreal. On April 4, 2003, the order pages on its English‑language Web site indicated prices of $89 rather than $379 and of $118 rather than $549 for two models of handheld computers. On April 5, on being informed of the errors, Dell blocked access to the erroneous order pages through the usual address. D, circumventing the measures taken by Dell by using a deep link that enabled him to access the order pages without following the usual route, ordered a computer at the lower price indicated there. Dell then posted a price correction notice and at the same time announced that it would not process orders for computers at the prices of $89 and $118. When Dell refused to honour D’s order at the lower price, the Union des consummates and D filed a motion for authorization to institute a class action against Dell. Dell applied for referral of D’s claim to arbitration pursuant to an arbitration clause contained in the terms and conditions of sale, and dismissal of the motion for authorization to institute a class action. The Superior Court and the Court of Appeal held, for different reasons, that the arbitration clause could not be set up against D.”[emphasis added]

I’ll repeat what Dumoulin did: “D, circumventing the measures taken by Dell by using a deep link that enabled him to access the order pages without following the usual route, ordered a computer at the lower price indicated there.

Let’s compare that to its bricks and mortar equivalent: Dumoulin walking into, say, an Apple store, switching the price tags from a higher price unit to a lower price unit, then attempting to purchase the unit at the lower price. Does that sound like attempted fraud to you?

It’s probably correct to say that what Dumoulin did was and should be irrelevant to the decision made by the SCC. However, are you certain it was?

More to the point, when considering the “common sense” of class counsel, isn’t worth asking why the Union des consommateurs and its counsel decided to use Dumoulin as its name plaintiff. Could they not find one other aggrieved person amongst the entire Quebec polis?