Law Times

PAGE 12 FOCUS February 22, 2010 • Law Times Observers expect government to reintroduce controversial anti-spam bill Canada takes hard line compared to U.S. BY JULIUS MELNITZER For Law Times C anada is currently the only G8 country and one of only four mem- bers of the Organization for Economic Co-operation and Development that don't have anti-spam legislation. It's not that spam isn't a problem in the country — the Cisco 2008 An- nual Security Report estimated that 4.7 per cent of the world's spam originated from Canada. That puts us in fourth place glob- ally, outdone only by the United States, Turkey, and Russia. But change is in the air. In April 2009, the federal govern- ment introduced bill C-27, the electronic commerce protec- tion act, which aims to regulate spam, phishing, counterfeit web sites, and spyware. While the bill died on the order pa- per when the Tory government prorogued Parliament recently, observers believe it will reintro- duce the legislation in substan- tially the same form. "If that is the case, the very significant differences between the [Canadian bill] as currently drafted and the U.S. legislation will remain, " says Charles Mor- gan of McCarthy Tétrault LLP. The Tory law "is far more comprehensive," he notes. Unlike any other international anti-spam legislation, the provi- sions in Canada aren't limited to messages that may be harmful in the sense that they contain some element of fraud or deceit. Rath- er, the bill would prohibit the sending of any "commercial elec- tronic message," defined as any telecommunication including text, sound, voice or image, to an electronic address without the re- cipient's prior consent where the purpose is to encourage participa- tion in a commercial activity. "The bill assumes that all electronic communications are that could violate the freedom of speech guarantees under the Canadian Charter of Rights and Freedoms." All of this is not to say the Canada's proposed anti-spam bill 'is far more comprehensive' than U.S. legislation, says Charles Morgan. unwanted spam and prohibits all commercial electronic mes- sages, except in limited circum- stances," Morgan explains. "It thus imposes significant restric- tions on commercial speech laws in the two countries would be completely at odds. Indeed, there are important similarities between the Canadian draft bill and U.S. legislation in the sense that the laws' purposes are the same. Both seek to prevent con- sumers from being misled; both give consumers the right to de- cline the receipt of unwanted e- mails; and both seek to reduce the costs for businesses that have to manage an influx of spam. But the fact remains that the U.S. law is opt-out legislation whereas the Canadian proposal is premised on an opt-in prin- ciple. As well, our law would apply not only to business-to- consumer messages but also to business-to-business mes- sages. It also covers all forms of electronic messaging including voicemail, texting, instant mes- saging, and chat. The core difficulty for busi- nesses involved in electronic marketing, however, is that the consent provisions are quite rigid. The proposed law is very clear that consent is necessary before a business can send a commercial electronic message, which means that it can't even send an e-mail asking for per- mission. The U.S. law, by con- trast, allows for an initial mail- ing as long as it contains the required information and has a simple unsubscribe function. Consent under the Cana- dian bill is implied when the sender and recipient have had an existing business or non- business relationship in the past 18 months, both of which the statute defines. Where no such relationship exists, the sender must obtain the ex- press consent of the recipient by setting out the purpose for which it is seeking permission, information identifying who is requesting it, and other details that may be required under regulation. Morgan believes those consent provisions are far too limiting. "The bill does not permit consent for a solicitation to be inferred from publication of an e-mail address even if it would be reasonable to assume the mes- sage would be of interest to the individual or their organization or more generally from the con- duct of the individual or organi- zations concerned," he notes. Putting aside the practicality Inside you will find: • an up-to-date alphabetical listing of more than 57,000 barristers, solicitors and Quebec notaries, corporate counsel, law firms and judges in Canada; • contact information for the Supreme Court of Canada, the Federal Court of Canada, Federal Cabinet Ministers, departments, boards, commissions and Crown corporations; • legal and government contact information related to each province for the Courts of Appeal, Supreme Courts, County and District Courts, Provincial Courts, law societies, law schools, Legal Aid, and other law-related offices of importance. More than a phone book Hardbound • Published February each year • On subscription $141 • P/C 0600140999 One-time purchase $157 • P/C 0600010999 • ISSN 0084-8573 CD-ROM • On subscription $214 • P/C 0600260999 One-time purchase $229 • P/C 0600210000 or efficacy of the bill, however, it's clear that the legislation has teeth. Offenders would be liable for administrative monetary penalties of up to $1 million for individuals and up to $10 mil- lion for corporations. Officers, directors, and agents would be on the hook if they directed, authorized or participated in the violation. A due diligence defence is available. The Canadian Radio-televi- sion and Telecommunications Commission will determine whether a violation has oc- curred and the amount of the penalty. The legislation also al- lows violators to seek redress at the Federal Court of Appeal. As well, it provides for a pri- For a 30-day, no risk evaluation call 1.800.565.6967 Canada Law Book is a Division of The Cartwright Group Ltd. Prices subject to change without notice, to applicable taxes and shipping and handling. CanLawList_LT_Feb8/15_10.indd 1 www.lawtimesnews.com 2/3/10 4:35:06 PM vate right of action for individu- als affected by offenders. These individuals may apply for a com- pensation order for actual loss as well as a maximum of $200 for each contravention of the breached provisions for each day on which a violation occurred, with a limit of $1 million. Of- ficers, directors, and agents of a corporation are subject to the private right of action if they directed, authorized or partici- pated in the contravention. As for prohibited activities that originate outside Canada, the bill would give Canada's privacy commissioner the pow- er to disclose and share infor- mation with foreign states. LT

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