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Tuesday November 29, 2011 |
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The Privacy Commissioner of Canada's blog features a post I
wrote on the anti-spam regulatory process.
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Monday November 28, 2011 |
Last year, a Quebec court upheld the largest spam damage award in the
world, ordering Adam Guerbuez, a Montreal-based email marketer, to pay
Facebook $873 million dollars for sending millions of spam messages to
users of the popular social network. Two months later, the Conservative
government passed long overdue anti-spam legislation that 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, my op-ed in the Hill Times (homepage
version) notes the law is in limbo, the
victim of an intense behind-the-scenes lobbying campaign that threatens
to water-down the legislation such that Guerbuez, who maintains an
active online presence, has publicly thanked the lobby groups for
helping to keep him in business.
The spring election delayed the introduction of draft regulations for
the anti-spam legislation, but since they were posted in early summer,
lobby groups have used the process as an invitation to re-open the
legislation and delay any implementation for months or even
years.
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Sunday November 27, 2011 |
Appeared in the Hill Times on November 28, 2011 as Will Paradis Fail to
Can Canadian Spam?
Last year, a Quebec court upheld the largest spam damage award in the
world, ordering Adam Guerbuez, a Montreal-based email marketer, to pay
Facebook $873 million dollars for sending millions of spam messages to
users of the popular social network. Two months later, the Conservative
government passed long overdue anti-spam legislation that 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 an intense behind-the-scenes lobbying campaign that threatens
to water-down the legislation such that Guerbuez, who maintains an
active online presence, has publicly thanked the lobby groups for
helping to keep him in business.
The spring election delayed the introduction of draft regulations for
the anti-spam legislation, but since they were posted in early summer,
lobby groups have used the process as an invitation to re-open the
legislation and delay any implementation for months or even
years.
While the government has remained mum on its plans, public comments
from groups like the Canadian Marketing Association indicate that new
regulations are on the way with backroom consultations with lobby
groups that will create significant delays. Moreover, it appears that
Industry Minister Christian Paradis has caved to the lobby pressure and
is prepared to inject massive loopholes into what was touted as one of
the world’s toughest anti-spam laws.
The law sets reasonable limits for online marketing consistent with
rules found in many other countries. It includes important "opt-in"
consent requirements, but also features numerous exceptions including a
business-to-business exception so that businesses that send commercial
email to other businesses are immediately exempt from the need to
obtain consent. In fact, all commercial messaging to consumers is
permitted - there are no limits - so long as the business has obtained
prior consent.
Despite the balanced approach, lobby groups are determined to undo many
basic protections. For example, the law includes an exception for
commercial messages where there is a "personal relationship." Industry
Canada proposed a regulation that defined a personal relationship as
one involving an in-person meeting and a two-way communication at least
once over the prior two years.
Lobby groups such as the Interactive Advertising Bureau Canada have
called on the government to drop these conditions, arguing no in-person
meeting and no time limit is needed. In other words, according to
the IAB, a 10 year old email exchange should qualify as a personal
relationship and exempt the marketer from obtaining user consent and
complying with the anti-spam rules.
The lobby groups have also targeted the tougher consent requirements,
noting that they may exceed those required under current private sector
privacy law. The tougher standards are a feature, not a bug, as MPs
were well aware that the anti-spam law was increasing privacy
protections. Yet now lobby groups want to use the regulatory
process to "grandfather" any earlier consent - even those that may have
only been implied. As a result, millions of Canadians will find
that organizations claim consent to continue marketing to them.
Groups such as the Canadian Real Estate Association also have their
sights set on dismantling protections against unwanted "referral"
emails. While the law currently permits referral emails with
appropriate consents, new regulations may establish broad exceptions
that imply consent for many referral emails.
The campaign to undermine the law is not limited to spam. The law also
contains mandatory disclosure requirements when Canadians install new
software programs on their personal computers. This issue was
hotly debated at committee and the compromise legislation designed to
protect individual privacy and security, while enabling common
installations (such as security updates) to proceed unimpeded.
Lobby groups are similarly using the regulatory process to re-open the
legislative compromise. For example, the Information Technology
Association of Canada, which represents software and technology
companies, argues that software vendors should be permitted to install
programs without disclosure provided they notify the user of possible
installations within the licence agreement. Given the common practice
of burying such terms in long agreements that few consumers ever read,
few will be aware that they have consented to the secret installation
of programs designed to monitor their use of the software.
None of this would pose a significant concern if Paradis was prepared
to tell the lobby groups that re-opening the spam law is not
option. But with secret meetings and leaked information, it is
increasingly apparent that the protections promised to Canadians may
soon dissolve, ensuring that the likes of Adam Guerbuez will continue
to ridicule Canada’s effort to stop unwanted spam and calling into
question the government’s promise to protect Canadian consumers and
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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Tuesday November 01, 2011 |
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, my weekly technology law column (Toronto
Star version, homepage
version) reports 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.
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