Time to hit delete key on weak spam policy
Thursday, May 30, 2002 – Print Edition, Page B15

Few issues raise the ire of Internet users as much as the unending torrent of unsolicited commercial e-mail, better known as spam, that clogs their e-mail in-boxes each day. What was once generally viewed as a minor nuisance has grown into a monster as users' delete keys wither under an onslaught of e-mails touting get-rich-quick schemes, pornography, and the like.

Many countries have turned to anti-spam legislation to combat the practice. The United States has led the way with more than 20 states featuring statutes, while Congress annually considers a national anti-spam bill. Although anti-spam legislation has obviously not eliminated spam, it has had an impact in states such as California and Washington, where courts have upheld their constitutional validity and levied fines against spammers.

Canadian policy on spam was last articulated in the late 1990s in a policy document from Industry Canada's electronic commerce branch. The government acknowledged the public's rising concern with spam but cited several reasons why it believed new legislation was unnecessary.

First, the government argued that consumers could consider the anti-spam measures employed by their Internet service provider when picking their provider. If their ISP wasn't doing enough to counter spam, they could simply shift their business elsewhere. Second, the government claimed that Canada's new privacy legislation would help guard against the buying and selling of personal e-mail lists that are the lifeblood of spammers. Third, it maintained that the courts could be used to battle spam, either through civil lawsuits or by using the Criminal Code to bring criminal charges where the offending spam was fraudulent or otherwise illegal in nature.

While Ottawa's policy was open to debate even when introduced, it has become increasingly apparent that it is out of touch with current marketplace and legal realities and that a re-examination is urgently required.

On the marketplace front, the government's emphasis on consumer choice with regard to ISP service is misplaced. The issue is not about consumer choice, but rather about consumer cost. Quite simply, consumers bear the cost of spam regardless of which ISP they choose. Each provider employs a battery of marginally effective anti-spam measures that require significant resources. The cost of those resources is ultimately borne by the consumer, who indirectly pays not to receive spam.

Moreover, some Internet users actually pay to receive spam. New e-mail devices such as Research In Motion's BlackBerry frequently charge users based on the amount of data they download. The more spam a user gets, the more he or she pays.

From a legal perspective, Canada's privacy legislation was never drafted with spam specifically in mind. Although the legislation would indeed apply to the sale of personal e-mail information without consent, this approach targets list brokers, who buy and sell e-mail addresses for pennies per thousand, rather than the spammers themselves.

Even more troubling is the recent Alberta criminal case of R. v. Hamilton, Canada's first criminal spam case, in which the Criminal Code proved ineffective in dealing with a spammer who sent e-mails offering to sell documents detailing how to make homemade bombs, how to break into private homes, and how to generate credit card numbers.

The spammer was charged under section 464 of the Criminal Code, which makes it a crime to counsel indictable offences such as making explosive devices with intent to cause an explosion. While the Crown had little difficulty in proving that the defendant met the active element of the charge by distributing the content, it failed to prove the equally important mental element of the crime.

The court ruled that merely intending to counsel an indictable offence was insufficient. Rather, the law requires intent that the offence being counselled actually be committed.

In this case, the court found that the spammer did not really intend for anyone to use the information he was selling. In fact, the spammer testified that he had never even read the bomb-making material.

Accordingly, the court ruled, the spammer's motivation was monetary and not criminal, so the requirements under the statute were not met.

The government concluded its last spam policy by arguing that Canada has the appropriate mix of policy, law, and consumer awareness to deal with spam, although it conceded that it would consider changes if required.

Several years later, it has become clear that a market-based solution unacceptably leaves consumers paying not to receive spam, while current legal solutions fail to combat the very criminal activity they were designed to address.

The time has come to hit the delete key on current weak Canadian anti-spam policy and to begin work on crafting legislation that better protects Internet users.
Michael Geist is a law professor at the University of Ottawa Law School and director of e-commerce law at the law firm Goodmans LLP. His Web site is

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