Law Times

Page 10 May 16, 2016 • Law TiMes www.lawtimesnews.com Jury out on impact of anti-spam legislation BY MARG. BRUINEMAN For Law Times T wo investigations that led to the execution of war- rants in connection with the suspected use of ma- licious software, or malware, ear- lier this year are an encouraging start to an attack against damag- ing online threats in Canada, say lawyers who have been tracking Canada's anti-spam legislation. But concerns over an earlier section that prohibits sending electronic commercial commu- nications without consent from the receiver continue to linger. "The two recent cases have been situations involving, cer- tainly by the sounds of it, sig- nificant violations of the act," says John McKeown, a Toronto intellectual property lawyer with Goldman Sloan Nash & Haber LLP. "I think that's a good thing, to make the Internet a safer place for people who use it." The year-old sections make network re-routing as well as the use of botnets and malware ille- gal. In January, the Canadian Radio-television and Telecom- munications Commission an- nounced it focused on two lo- cations in the Niagara region where it was investigating the installation of malware and the altercation of transmission data. The investigation resulted from a lead from a vendor specializing in cyber-threat protection and forensics. It was the second time a war- rant had been executed. The first involved the takedown of a com- mand-and-control server located in Toronto that the CRTC said was part of a co-ordinated inter- national effort. The result, it add- ed in a press release, was the dis- ruption of the widely distributed Win32/Dorkbot malware family, which has infected more than one million personal computers in more than 190 countries. Once installed on a computer, Dorkbot can be instructed to steal passwords, download and install dangerous malware and, with other infected computers, send multiple requests to a spe- cific server to try to overwhelm its capacity. "The overall impact of the leg- islation — the jury is still out on that because it still does create some problems," adds McKeown, author of Fox on Canadian Law of Copyright and Industrial Designs as well as Brand Man- agement in Canadian Law. Canada's anti-spam legisla- tion was enacted in 2014 with the initial focus on the prohibi- tion of the sending of electronic messages for commercial activity without express consent. The malware provisions fol- lowed in January 2015, forbid- ding the installation of a com- puter program on someone else's computer without his or her per- mission, and it makes it illegal to alter transmission data by re- routing electronic transmission to a different address. A third aspect of the legisla- tion focusing on private rights of action is expected to come into force in 2017. "The intention of the law is supposed to be about targeting the most damaging and decep- tive types of spam," says David Elder, Stikeman Elliott LLP's chairman of the communica- tions group in its Ottawa office. But, he adds, there were con- cerns that the CRTC's early en- forcement efforts focused on legitimate domestic companies that had made mistakes in trying to comply rather than targeting hard-core spammers. Previously, Compu-Finder, Plenty of Fish, Porter Airlines, and Rogers Media all paid sig- nificant fines for breaches. "I think there's a big difference between somebody who's trying to steal your identity or take im- mediate financial advantage of you and tricking you out of your credit card number, your bank account number. I think that there's a big difference between that and getting an e-mail for a sale that maybe you don't want," says Elder. He says companies have, for the most part, tried to be com- pliant with the new law with a great deal of pain and expense. He figures marketers had to drop 20 to 80 per cent of their database because they wouldn't be able to prove they had the requisite con- sent. "Small businesses in par- ticular may be disproportion- ately impacted because they can't prospect, they can't reach out to new customers by e-mail, be- cause the law basically says you need consent unless you have an existing relationship with that person that would give rise to implied consent," says Elder. He points to the national no- call list, which doesn't apply to calls made to businesses. While the legislation is com- plex, not particularly clear, and places a great deal of administra- tive burden on companies, To- ronto technology and business lawyer Peter Murphy at Shibley Righton LLP says legislation was required and Canada was late in bringing it in. "Prior to CASL, e-mail was sort of the Wild West area for marketing and CASL has brought that into a regulatory regime that imposes discipline in the use of e-mail in marketing activities," he says. Marketers know that they now have to build some sort of a relationship and email blasts are no longer acceptable. So there has been a reduction in spam, at least by legitimate Canadian companies trying to follow the law. e next step is to send that message to companies sending emails from outside of the coun- try. "It seems like the CRTC is go- ing to put a greater focus on mes- sages coming into Canada com- ing from outside of Canada that are not compliant with CASL and I think Canadians would ap- preciate that and are watching for that," says Murphy. LT FOCUS law.utoronto.ca/ExecutiveLLM GPLLM Global Professional Master of Laws [Get a Master of Laws] Because business issues are legal issues. So if you want to get ahead in business, get the degree that gets you there faster. ONE YEAR – PART - TIME – NO THESIS – FOR L AWYERS AND NON - LAWYERS Untitled-8 1 2015-03-02 11:15 AM David Elder says the intention of anti-spam legislation is to target the most damaging and deceptive types of spam.

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