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Is the Government About to Can Its Own Anti-Spam Law?

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Tuesday June 25, 2013
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 mgeist@uottawa.ca or online at www.michaelgeist.ca.

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