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Will Paradis Fail To Can Canadian Spam?

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Monday November 28, 2011
Last year, a Quebec court upheld the largest spam damage award in the world, ordering Adam Guerbuez, a Montreal-based email marketer, to pay Facebook $873 million dollars for sending millions of spam messages to users of the popular social network. Two months later, the Conservative government passed long overdue anti-spam legislation that finally established strict rules for electronic marketing and safeguards against the installation of unwanted software programs on personal computers, all backed by tough multi-million dollar penalties.

Then-Industry Minister Tony Clement promised that the law would "protect Canadian businesses and consumers from harmful and misleading online threats," but nearly a year later, my op-ed in the Hill Times (homepage version) notes the law is in limbo, the victim of an intense behind-the-scenes lobbying campaign that threatens to water-down the legislation such that Guerbuez, who maintains an active online presence, has publicly thanked the lobby groups for helping to keep him in business.

The spring election delayed the introduction of draft regulations for the anti-spam legislation, but since they were posted in early summer, lobby groups have used the process as an invitation to re-open the legislation and delay any implementation for months or even years. 

While the government has remained mum on its plans, public comments from groups like the Canadian Marketing Association indicate that new regulations are on the way with backroom consultations with lobby groups that will create significant delays. Moreover, it appears that Industry Minister Christian Paradis has caved to the lobby pressure and is prepared to inject massive loopholes into what was touted as one of the world’s toughest anti-spam laws.

The law sets reasonable limits for online marketing consistent with rules found in many other countries. It includes important "opt-in" consent requirements, but also features numerous exceptions including a business-to-business exception so that businesses that send commercial email to other businesses are immediately exempt from the need to obtain consent. In fact, all commercial messaging to consumers is permitted - there are no limits - so long as the business has obtained prior consent.

Despite the balanced approach, lobby groups are determined to undo many basic protections. For example, the law includes an exception for commercial messages where there is a "personal relationship." Industry Canada proposed a regulation that defined a personal relationship as one involving an in-person meeting and a two-way communication at least once over the prior two years.

Lobby groups such as the Interactive Advertising Bureau Canada have called on the government to drop these conditions, arguing no in-person meeting and no time limit is needed.  In other words, according to the IAB, a 10 year old email exchange should qualify as a personal relationship and exempt the marketer from obtaining user consent and complying with the anti-spam rules.

The lobby groups have also targeted the tougher consent requirements, noting that they may exceed those required under current private sector privacy law. The tougher standards are a feature, not a bug, as MPs were well aware that the anti-spam law was increasing privacy protections.  Yet now lobby groups want to use the regulatory process to "grandfather" any earlier consent - even those that may have only been implied.  As a result, millions of Canadians will find that organizations claim consent to continue marketing to them.

Groups such as the Canadian Real Estate Association also have their sights set on dismantling protections against unwanted "referral" emails. While the law currently permits referral emails with appropriate consents, new regulations may establish broad exceptions that imply consent for many referral emails.

The campaign to undermine the law is not limited to spam. The law also contains mandatory disclosure requirements when Canadians install new software programs on their personal computers.  This issue was hotly debated at committee and the compromise legislation designed to protect individual privacy and security, while enabling common installations (such as security updates) to proceed unimpeded.

Lobby groups are similarly using the regulatory process to re-open the legislative compromise. For example, the Information Technology Association of Canada, which represents software and technology companies, argues that software vendors should be permitted to install programs without disclosure provided they notify the user of possible installations within the licence agreement. Given the common practice of burying such terms in long agreements that few consumers ever read, few will be aware that they have consented to the secret installation of programs designed to monitor their use of the software.

None of this would pose a significant concern if Paradis was prepared to tell the lobby groups that re-opening the spam law is not option.  But with secret meetings and leaked information, it is increasingly apparent that the protections promised to Canadians may soon dissolve, ensuring that the likes of Adam Guerbuez will continue to ridicule Canada’s effort to stop unwanted spam and calling into question the government’s promise to protect Canadian consumers and businesses.
Comments (9)add comment

Jason said:

...sigh...
Enter the lobbyists. The true rulers of the government. And on the payroll of the corporations, I might add. This is where the government's strength disappears.
November 28, 2011

schultzter said:

Wasting time & money again
It seems to me the solution is hitting the "Report Spam" button in your e-mail client. At a minimum your e-mail software will learn what you consider spam and clean-up for you. But if you use GMail or something web-based then it becomes even more powerful since you may never even see these messages if enough people have marked them as spam before you.

So once again politicians and lobbyists are wasting our time & money over a law for a problem that the market has already solved!

I've used GMail for years now and I rarely get more than one spam e-mail a month (which means I get two). I'm not even worried about giving out my e-mail address since I know the spam won't get to me thanks to Google's filters.
November 28, 2011

Lynn said:

They've Got to be Kidding!
ITAC needs a smack upside the head! Sneaky installs (and you're right, "disclosure" in the license agreement is, in effect, no disclosure at all) leave the door open for things like the infamous Sony rootkit to make their way onto our computers. We will have no legal protection from vendor snooping, and no was to tell what information they're actually harvesting. I can see this being used by crooks, in identity theft or other frauds.

Nobody should be able to install ANYTHING on my computer without my express consent!
November 28, 2011

ConcernedCanadian said:

Total Hypocrisy
I find it very interesting when special interests groups are happy to torpedo laws that are 'too much' in the interest of Canadians by limiting their commercial liberties when at the same time are willing to make new laws to betters screw Canadians and remove some more citizen liberties like in the case of digital locks.

At that rate, we are going to reach a state where those bloodsuckers are going to 'legally' install crapware on our computers BUT at the same times, we will be the criminals if we remove it because it's going to be digitally locked. That same crapware that we will not be permitted to legally uninstall because of the lock will download torrents after torrents of Hurt Locker while sending Voltage Picture ours names and addresses so they don't have the inconvenience of asking to court and greasing up the ISPs for our personal infos.

It may be a little exaggerated but still, it's something to think about!

CC
November 28, 2011

maebnoom said:

"new regulations are on the way with backroom consultations with lobby groups"
This is a main reason why democracy is illusory & is, in fact, dead.
November 28, 2011

IamME said:

@ConcernedCanadian
"At that rate, we are going to reach a state where those bloodsuckers are going to 'legally' install crapware on our computers BUT at the same times, we will be the criminals if we remove it because it's going to be digitally locked."

This is where desktop virtualization applications such as DeepFreeze and Returnil are nice. It doesn't matter what gets installed, it's only on a virtual environment and GONE once the machine is rebooted. No digital lock is broken since the application was never really installed on the system.

I don't think it's exaggerated at all. Virus and worm writers are becoming ever-more sneaky and until it's a well established legal fact that an IP address does not equal a person it is an entirely plausible situation.
November 28, 2011

Irene Carlson said:

...
Please stay on top of this as they are cleaver and persitent difficuult to catch strict laws must be in place to ensure safe peaceful work and enjoyment of the internet services we pay for. thanks.
I. Carlson.
November 28, 2011

Gregg said:

So why are mom's in wheelchairs....
....getting package bombs and not scum like Guerbuez?

We as a society must hold the scum in much, much higher esteem and just not know it consciously.
November 28, 2011

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