Sometime this week – possibly as soon as later today – the House of Commons will proceed to pass do-not-call legislation by giving Bill C-37 its third and final reading. While officials from all parties will likely point proudly to the new law as evidence that government can respond to the concerns of Canadians, the reality is that the bill has devolved into an embarrassing shell of its original self, rendered practically useless under the onslaught of lobby groups determined to thwart any attempt to limit their ability to call consumers at all hours of the day.
Regular readers will recall that several years ago the United States introduced legislation designed to curb unwanted telemarketing calls. A statutory "do not call" list was created allowing individuals to place their phone number on a list that, with limited exceptions, marketers were forbidden from calling.
The federal government introduced a Canadian version of the bill late last year, establishing the broad framework necessary for a do-not-call list, including the statutory powers needed to create the list and penalties for non-compliance. The Canadian Radio-television and Telecommunications Commission, Canada’ s telecom regulator, was asked to develop the specific details in a public consultation once the bill became law.
Once the bill was referred to a House of Commons committee, lobby groups pounced, crafting exceptions for charities, political parties, polling companies, and businesses with existing business relationships.
Last week, committee members engaged in a sad display of self-congratulation as a two-hour House of Commons debate on the bill became an opportunity for several Members of Parliament to highlight their work in limiting the bill’ s effectiveness.
Committee members claimed that the exception for political parties is needed to allow for "freedom of speech and for get out the vote campaigns." Similarly, an exception for polling companies was deemed essential because a truly effective do-not-call list could lead to "unrepresentative samples of the Canadian public created by unreliable survey results." No one seemed to consider whether polling companies have alternate means of conducting surveys without resorting to invasive phone calls.
The reliance on telemarketing by charities and businesses was cited as the primary reason for those exceptions. One MP claimed that without the exception, charities "would have been condemned to die", while the prior business relationship exception, which allows businesses to call customers 18 months after their last transaction or six months after a mere inquiry, is needed for businesses to "survive."
In fact, the MPs sought to include additional exceptions, including one for Canadian newspapers who under the exception would be entitled to freely solicit for new subscribers. The rationale behind this proposed exception? According to one MP "it is about literacy and freedom of speech. Newspapers contribute to the democratic dialogue in Canada. In fact, section 2(b) of the Charter of Rights and Freedoms protects the freedom of thought, belief, opinion and expression, including the freedom of the press."
Members of Parliament also put the government on notice that other non-profit groups, including hundreds of advocacy groups not currently covered by the charity exception, might also need their own exception. With the bill soon headed to the Senate, it is clear that further exceptions are a distinct possibility.
While the misuse of critical freedoms for political gain is very troubling, it is the MP’ s inconsistency will leave an indelible stain on this policy process.
As they rush to congratulate one another for a job well done, the MPs acknowledge that their constituents overwhelmingly want a do-not-call list. In fact, one study sponsored by Industry Canada found that 97 percent of Canadians find telemarketing calls irritating. Moreover, the MPs are also quick to support the notion that Canadians should have a right to privacy.
Yet the case for exceptions begins to falter when the MPs also maintain that the do-not-call list benefits the telemarketing industry. Noted one MP:
"In truth, they no longer call people who do not want to be called and say so. Representatives only call people who are willing to be called. So this increases the effectiveness of their calls. That way, they can provide better services to their clients because the company has achieved its objectives and its operating costs are lower, compared to when it made random calls. Often, by calling people who did not want to be called, they wasted countless minutes and grew frustrated."
Left unanswered is why all these exceptions are needed if calling people who do not want to be called is a waste of time. One would have thought that charities, political parties, polling companies, and businesses don’ t want to waste their time.
The reality, of course, is that they don’ t want to waste their time. They want to waste ours.
Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can reached at email@example.com or online at www.michaelgeist.ca.