Monday October 31, 2011
on October 30, 2011 in the Toronto Star as Anti-Spam Law in Limbo as
Groups Seek Exceptions
Last December, the government celebrated passing eight bills into law,
including the long-delayed anti-spam bill. Years after a national task
force recommended enacting anti-spam legislation, the Canadian bill
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, the law is in limbo, the
victim of a fight over regulations that threaten to delay
implementation for many more months.
Although support for anti-spam legislation would seemingly be
uncontroversial, various business groups mounted a spirited attack
against the bill during the legislative process, claiming requirements
to obtain user consent before sending commercial email would create new
barriers to doing business online.
Passing the anti-spam legislation ultimately proved far more difficult
than most anticipated with groups seeking to water down tough
provisions and greatly expand the list of exceptions to the general
rules on obtaining user consent.
Months later, it is déjà vu all over again as the
government works to finalize the regulations for the anti-spam
legislation and the same groups make many of the same arguments.
A call for comment over the summer from both Industry Canada and the
Canadian Radio-television and Telecommunications Commission
(enforcement of the law is shared by the CRTC, Competition Bureau, and
Privacy Commissioner of Canada) generated dozens of responses, most of
which begin by congratulating the government on passing anti-spam
legislation and then proceeded to urge significant amendments.
Some of the suggested changes make sense and have garnered
near-universal support. The proposed regulations adopted a
restrictive approach to obtaining consent, requiring that it be "in
writing." Many submissions from business and consumer groups argue this
is unnecessary since electronic or verbal consents should be equally
Several business groups have also noted that the form requirements on
commercial electronic messages require a website address, yet many
businesses are still not online. Moreover, the telecom industry points
to short code messaging that already require consent and do not fit
neatly into the anti-spam form requirements.
Yet for every legitimate regulatory concern, there seems to be a group
that wants to re-open the carefully crafted legislative compromise. For
example, Advocis, the Financial Advisors Association of Canada,
emphasizes the value of financial literacy in an effort to argue that
rules on referrals and consent should contain specific exceptions for
The Entertainment Software Association of Canada calls for a host of
new exceptions, including watering down consent requirements for the
installation of computer programs. This particular issue was the
subject of extensive debate during committee hearings with the ESAC
position previously rejected by the government and opposition MPs.
Other submissions call on the government to eliminate consent
requirements altogether for small and startup businesses, suggesting
that businesses be permitted to send thousands of messages each year
without any need for prior consent.
The relentless campaign against the legislation has proven effective as
it appears virtually certain that the government will now delay its
implementation. Industry Minister Christian Paradis has remained silent
on the issue, but last week the Canadian Marketing Association told its
members that further consultations are now planned and that the law
will not take effect until the middle of 2012 at the earliest.
It is important to get the regulations right so that Canadians are
better protected from online threats and business does not grind to a
halt. But establishing new consent requirements or requiring changes to
some online business methods are the point of the law, not something to
be eviscerated through the fine print of regulation.
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 firstname.lastname@example.org or online
TagsShareMonday October 31, 2011
Wednesday August 03, 2011
The federal government has launched
a new anti-spam site at FightSpam.gc.ca.
The site will grow once new anti-spam law regulations take effect.
TagsShareWednesday August 03, 2011
Monday July 11, 2011
Following on the CRTC's release of its draft anti-spam regulations,
Industry Canada has posted its anti-spam
regulations. The regulations cover the scope of personal and family
relationship within the Act and the conditions for use of consent.
There is a 60 day window for comment.
TagsShareMonday July 11, 2011
Monday July 04, 2011
The CRTC has released draft
for the provisions it deals with in Canada's new anti-spam legislation.
The CRTC regulations are only part of the picture with Industry Canada
scheduled to release its own regulations shortly. The CRTC regulations
include specifications on the information that must be included in a
commercial electronic message:
TagsShareMonday July 04, 2011
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