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    Government Caves to Lobbying Pressure on Anti-Spam Legislation

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    Tuesday January 15, 2013
    Canada's anti-spam legislation was back in the news last week as the government unveiled revised regulations that may allow for the law to finally take effect next year. Canada is one of the only developed economies in the world without an anti-spam law and lengthy delays have created considerable uncertainty.

    My weekly technology law column (Toronto Star version, homepage version) notes that calls for Canadian anti-spam legislation date back to 2005, when a national task force recommended enacting laws to target spam, spyware, and other online harms (I was a member of the task force). The government passed the anti-spam law in December 2010, with many expecting a quick introduction of the accompanying regulations that would allow the law to take effect. After business groups criticized draft regulations released in June 2011, however, the government hit the pause button, leaving the law in limbo.


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    Government Caves to Lobbying Pressure on Anti-Spam Legislation

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    Tuesday January 15, 2013
    Appeared in the Toronto Star on January 13, 2013 as Government Caves to Lobbying Pressure on Anti-Spam Law

    Canada's anti-spam legislation was back in the news last week as the government unveiled revised regulations that may allow for the law to finally take effect next year. Canada is one of the only developed economies in the world without an anti-spam law and lengthy delays have created considerable uncertainty.

    Calls for Canadian anti-spam legislation date back to 2005, when a national task force recommended enacting laws to target spam, spyware, and other online harms (I was a member of the task force). The government passed the anti-spam law in December 2010, with many expecting a quick introduction of the accompanying regulations that would allow the law to take effect. After business groups criticized draft regulations released in June 2011, however, the government hit the pause button, leaving the law in limbo.

    Critics used the delay to spread fear about "job losses" and "regulatory red tape", yet the reality is that the battle over the anti-spam battle boils down largely to a single issue: whether businesses should be required to obtain explicit, opt-in consumer consent before sending electronic commercial messages. The law says they should and much of the intense lobbying for new exceptions is premised on avoiding this requirement.

    The new law unquestionably sets a high bar for consent. It envisions a marketing framework where consumers reassert some measure of control over their email in-boxes by opting-in to commercial messages, rather than being required to opt-out.  Moreover, the law establishes email form requirements to simplify opting-out of future messages should consumers change their minds and backs the new framework with stiff penalties for violations the law.

    While an opt-in consent system should be relatively uncontroversial - businesses benefit by sending messages to consumers who clearly want to receive them - the vociferous criticism makes it plain that many marketing organizations fear that if Canadians are asked directly for their email marketing consent, many will decline.

    Given those fears, Industry Minister Christian Paradis faced considerable lobbying pressure to water down the law through the regulatory process.  Earlier this month, he caved to some demands by introducing a host of new exceptions that limit the effectiveness of the opt-in model.

    For example, the regulations include a broad new exception for third party referrals that will allow businesses to send commercial electronic messages without consent based merely on a referral from a third party. This issue was hotly debated when the law was being drafted and, at the time, the government rejected claims that such an exception was warranted.

    The new regulations also include an expansive definition for a "personal relationships" exception that is likely to be used by organizations to send unsolicited commercial messages based on limited contact. The flexible definition of personal relationship may open the door to claims that Facebook "likes" or similar social media contact is sufficient to constitute a personal relationship.

    Industry groups had asked the government to pre-approve existing consents obtained under PIPEDA, the private sector privacy law, arguing that obtaining new consumer consents will be disruptive.  The government rightly rejected those requests, however, since the PIPEDA consents will often have been implied from consumer activity and not based on an actual, informed consent.

    Those businesses concerned by the new consent standards may find comfort in the assurance that some requirements are unlikely to take effect until 2017.  The law features a lengthy transition period that will allow businesses to rely on their existing consents for three years after the legislation takes effect. Assuming the regulations are finalized in 2013 and the law becomes operational in 2014, businesses will have been given seven years to ask Canadian consumers if they consent to the use of their personal information for marketing purposes.

    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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    How Canadians Reclaimed the Public Interest on Digital Policy

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    Tuesday November 06, 2012
    The fall of 2007 was a particularly bleak period for Canadians concerned with digital policies. The government had just issued a policy direction to the CRTC to adopt a hands-off regulatory approach even as consumer prices for Internet and wireless services were increasing. Meanwhile, the Department of Public Safety held a semi-secret consultation on Internet surveillance where mandatory disclosure of subscriber information was assumed.

    Moreover, the CRTC had largely rejected mounting concerns with the way Internet providers managed their networks (often called network neutrality), there were doubts about new wireless competitors entering the marketplace, Industry Canada had seemingly no interest in developing anti-spam laws or updating privacy legislation, the government agreed to participate in negotiations on the Anti-Counterfeiting Trade Agreement, and a copyright bill with virtually no user-oriented provision was being prepared for introduction.

    My weekly technology law column (Toronto Star version, homepage version) notes that fast forward five years later and the CRTC has now positioned itself as a staunch defender of the public interest with consumer concerns at the centre of its policy making process, a lawful access bill was introduced in the spring but is viewed as politically dead, the CRTC has crafted and enforced new net neutrality rules, anti-spam legislation has been enacted, there are several new wireless providers and the removal of most foreign investment restrictions, the Anti-Counterfeiting Trade Agreement is discredited after being rejected by the European Parliament, and copyright reform is set to take effect this week with a host of user safeguards and rights.


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    Stop Me If You've Heard This One Before: Digital Economy Strategy Coming Later This Year

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    Wednesday April 25, 2012
    Industry Minister Christian Paradis spoke at the Canada 3.0 conference in Stratford yesterday, providing an update on the government's digital economy plans. Paradis trumpeted some of the measures in the budget as well as the trio of related laws - privacy reform, copyright reform, and anti-spam legislation (which he indicated he expects to take effect next year). He also noted the urban-rural divide on broadband access, which he seems to think can be addressed through rural deployment obligations in the forthcoming the spectrum auction (the final consult to be released today).

    Paradis unsurprisingly did not mention that the privacy reform, Bill C-12, has stagnated for months in the House and is increasingly viewed as inadequate, nor that the anti-spam bill became law in 2010 but has been delayed by his own department's failure to finalize the necessary regulations. Nor did he mention lawful access (Bill C-30), which will lead to increased Internet costs, or the budget cuts to the Community Access Program (which will mean a loss of access for low income Canadians), or reduced funding to CANARIE, which runs Canada's high-speed research network.

    Paradis concluded by saying the work is not done and that now the plan is to release a digital economy strategy later this year (the IIC annual conference would be a good bet). Given that the government launched its digital economy strategy consultation in May 2010, Industry Minister Clement promised the strategy by the spring of 2011 as part of an interim update in November 2010, and Paradis himself spoke about the strategy nearly a year ago, the digital economy strategy is still seemingly ensconced as the government's Penske File.
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