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Friday February 15, 2013 |
For the past month, business groups from across the country have
waged an extraordinary campaign against Canada's anti-spam
legislation. With the long overdue law likely to take effect by
year-end, groups such as the Canadian Chamber of Commerce, the
Canadian Federation of Independent Business, and the Canadian
Marketing Association, have launched an all-out blitz to carve out
large loopholes in the law and exempt highly questionable conduct.
My weekly technology law column (Toronto
Star version, homepage version) notes that the business
groups' chief concern is that the law moves Canada toward a stricter
"opt-in" privacy approach that requires marketers to obtain customer
consent before sending commercial electronic messages. The move will
provide Canadians with greater control over their in-boxes, while
also resulting in more effective electronic marketing campaigns for
businesses.
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Friday February 15, 2013 |
Appeared
in the Toronto Star on February 9, 2013 as Businesses Think
Anti-Spam Law Should Protect Them, Not Consumers
For the past month, business groups from across the country have
waged an extraordinary campaign against Canada's anti-spam
legislation. With the long overdue law likely to take effect by
year-end, groups such as the Canadian Chamber of Commerce, the
Canadian Federation of Independent Business, and the Canadian
Marketing Association, have launched an all-out blitz to carve out
large loopholes in the law and exempt highly questionable conduct.
The business groups' chief concern is that the law moves Canada
toward a stricter "opt-in" privacy approach that requires marketers
to obtain customer consent before sending commercial electronic
messages. The move will provide Canadians with greater control over
their in-boxes, while also resulting in more effective electronic
marketing campaigns for businesses.
Businesses claim the changes will be costly and out-of-step with the
rest of the world, but the reality is that Canada is playing
catch-up years after most other developed countries implemented
similar safeguards. The opt-in approach can be found in many
countries including Australia, the United Kingdom, the European
Union, and Japan, who have all recognized that weaker opt-out models
(that permit marketing until a consumer proactively asks for it to
stop) simply don't provide effective protection.
Moreover, the government has added numerous safeguards for business
to the law. The general requirement may be opt-in consent, but there
are many exceptions that allow for softer, implied consent. These
include exceptions for existing business relationships, personal and
family relationships, business-to-business emails, and third-party
referrals.
In fact, there is even an exception for email addresses that have
been posted online without a notice that the poster does not wish to
receive unsolicited commercial email. For companies seeking to
develop lists of potential contacts, this exception ensures that
will remain a possibility.
In addition to the exceptions, the business community has been
granted years to comply with a transition period that could run to
2017 before a business must switch to opt-in consent for its
existing customers.
Despite the numerous carve outs, the business groups claim that the
law will result in significant new expenditures, including the need
to maintain a database of opt-in consents and a website to allow for
easy access to contact information and unsubscribe mechanisms. Yet
those businesses are already required to maintain databases with
opt-out information and electronic marketing without a website seems
somewhat pointless.
Perhaps the most surprising demand from business groups is an
expansive exception to a new requirement to obtain express consent
prior to the installation of computer software. The groups
have asked the government to delay implementation of this rule
indefinitely. Alternatively, they are seeking at least ten
additional exceptions, including one that would permit surreptitious
surveillance for private enforcement purposes.
The business groups' proposed provision would remove the need for
express consent for the installation of any program designed "to
prevent, detect, investigate, or terminate activities" such as the
unauthorized use of a computer or the contravention of any law,
whether Canadian or foreign. Once operational it would effectively
legalize spyware in Canada on behalf of these industry groups and
create a new mechanism for enforcing foreign laws in Canada.
The potential scope of coverage is breathtaking: a software program
secretly installed by an entertainment software company designed to
detect or investigate alleged copyright infringement would be
covered by this exception. So too would programs designed to block
access to certain websites, attempts to access wireless networks
without authorization, or even key-logger programs that track
unsuspecting users.
The anti-spam law was enacted with the promise of increasing
consumer confidence in e-commerce by providing protections commonly
found in other countries. With the latest round of lobbying,
however, business groups are pressuring Industry Minister Christian
Paradis to turn the law upside down by shifting from protecting
consumers to protecting businesses.
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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Thursday October 11, 2012 |
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The government continues to drag its feet on bringing forward
anti-spam regulations - Canada's anti-spam law received royal assent
in 2010 but won't take effect until 2013 at the earliest - but the
CRTC seems determined to move things forward. Yesterday it released
two information bulletins that provide guidelines on how it will
interpret the law and regulations. These include examples of
appropriate opt-out
mechanisms and the use of toggling to obtain express
consent. The CRTC guidelines are helpful, but without movement
from Industry Canada, the law will remain effectively dormant.
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Friday May 21, 2010 |
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The government has placed two bills on the notice paper for introduction next week: the Electronic Commerce Protection Act (which is the re-introduction of the anti-spam bill that died with prorogation) and amendements to PIPEDA (which should be a data breach notification requirement bill). anti-spam, data breach notification, ecpa, electronic commerce protection act, pipeda, privacy Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterTagsShareFriday May 21, 2010 |
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