Appeared in the Toronto Star on June 22, 2013 as Anti-Spam Law Could be Canned by Government
In May 2010, then-Industry Minister Tony Clement introduced anti-spam
legislation that he admitted was long overdue. Clement acknowledged that
"Canada is seen as a haven for spammers because of the gaps in our
current legislation...a place where spammers can reside and inflict
their damage around the world." Despite heavy lobbying against the
legislation by groups concerned with new rules on electronic marketing,
the government pushed ahead, with the bill receiving all-party support
and royal assent by the end of that year.
Yet two-and-a-half years later, the anti-spam law has still not taken
effect, awaiting long-delayed final regulations that have been the
target of an intensive campaign to water-down or repeal the legislation
before it ever takes effect.
Last week, government officials disclosed that the best-case scenario
for the law is that final regulations are released late this summer with
the implementation of the law delayed until the fall of 2014.
Moreover, many provisions may not become operational until at least
2017, eight years after the first anti-spam law bill was tabled in the
House of Commons.
Yet even that timetable may be overly optimistic. With the government
reportedly preparing a major cabinet shuffle this summer that may
include another change at Industry Canada, it appears that it may be
ready to can its own anti-spam law. Should the cabinet shuffle result in
a new industry minister, the entire issue will likely go back to the
drawing board with the prospect of new briefings, new consultations, and
delays that could stretch into 2015 and beyond.
In fact, even if Industry Minister Christian Paradis takes advantage of
the narrow window this summer to obtain the necessary approvals for
final regulations, the law will contain a myriad of expanded exceptions
and implementation delays.
When Parliament passed the legislation, it was touted as one of the
toughest and most comprehensive in the world, adopting a pro-privacy
consent model that requires explicit approval from consumers in order to
send them commercial electronic messages. The law also includes
safeguards against software installations on personal computers without
consent, all backed by strong enforcement powers that include
significant penalties for violation.
As with many deals, however, it pays to read the fine print. The law
does not take effect until associated regulations are finalized and
lobby groups have used the regulation-making process to raise a host of
concerns. While some fine-tuning was to be expected, the regulations
have already expanded many exceptions and officials have indicated that
further changes may be on the way.
The heavy lobbying has left some politicians unsure of what to make of
the law, understandably concerned when small businesses claim it will
stop electronic marketing and charities express fear that it will cut
off important sources of funding.
Yet the reality is not nearly as frightening as critics suggest.
Businesses have been given years to adapt to the new system and a simple
request for customer consent sometime before 2017 would address the key
consent requirement. For charities, obtaining lifelong consent (or
until consent is withdrawn) can be easily obtained when a member or
volunteer joins the organization or when a donor makes a contribution.
The government’s dithering on legislation is particularly surprising
given that it has otherwise pursued pro-consumer policies on telecom and
Internet issues. Delivering anti-spam legislation fits squarely within
that approach, since it provides Canadians with legal protections
against spyware and assurances that businesses and other organizations
will seek permission before sending electronic marketing materials.
Unless the government acts quickly, however, the law may become a victim
of a legislative delete button.
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.
TagsShareTuesday June 25, 2013
Earlier this month, I wrote about a diplomatic conference in Morocco
designed to finalize a much-needed copyright treaty for the visually
impaired. The column noted that the treaty seeks to do two things: first, it establishes minimum standards for copyright limitations
and exceptions for the visually impaired. Second, the treaty would facilitate the export of accessible works.
The conference is now in its second week with growing fears that there
will be no deal. The major hold-out appears to be the United States,
which is blocking consensus on a range of issues. According to documents released over the weekend, the primary source of the U.S. opposition comes from the motion picture association, which has engaged in months of behind-the-scenes lobbying designed to dismantle the treaty. For example, the MPA is trying to block the inclusion of a fair use/fair dealing provision, despite the fact that many countries (led by the U.S.) already have such a rule.
TagsShareMonday June 24, 2013
CBC's Curt Petrovich reports
on how Canada is among the most secretive of the Trans Pacific
Partnership countries, refusing to answer basic questions on a recent
negotiation session quietly conducted in Vancouver.TagsShareMonday June 24, 2013
I am very pleased to announce that I've joined the advisory board of SurfEasy,
a Toronto-based company focused on providing tools to better control
online privacy. As part of the launch, I'll be participating in a
Reddit AMA on Tuesday afternoon.TagsShareMonday June 24, 2013