Having reviewed the Electronic Commerce Protection Act provisions on anti-spam, enforcement, and do-not-call, the other major section in the bill are the provisions involving reforms to the Competition Act. The ECPA makes several important amendments to the statute to better ensure that false or misleading representations in electronic messages are captured by the law. This will mean that the Competition Bureau will have the power to investigate and take action against the use of false headers, false locator information, or the presence of false or misleading content in electronic messages.
The changes focus on parallel reforms to the false or misleading representation provisions and the deceptive marketing provisions. The Competition Act will now include a lengthy new provision on false or misleading representations in an electronic message. The three main offences, contained with Offences Related to Competition, are:
(1) No person shall, for the purpose of promoting, directly or indirectly, any business interest or the supply or use of a product, knowingly or recklessly send or cause to be sent a false or misleading representation in the sender information or subject matter information of an electronic message.
(2) No person shall, for the purpose of promoting, directly or indirectly, any business interest or the supply or use of a product, knowingly or recklessly send or cause to be sent in an electronic message a representation that is false or misleading in a material respect.
(3) No person shall, for the purpose of promoting, directly or indirectly, any business interest or the supply or use of a product, knowingly or recklessly make or cause to be made a false or misleading representation in a locator.
The net effect of these three provisions is to render illegal false header information in electronic messages such as emails or text messages (including false sender or subject lines), false or misleading content in electronic messages, as well as false locator information. Locator is defined in the Act as "a name or information used to identify a source of data on a computer system, and includes a URL." Sending a message covers both the actual sender and some who permits a representation to be made or sent. Electronic messages are considered sent once the transmission has been initiated and it does not matter if the message reaches the destination (or even if the recipient address is real).
With regard to penalties, the bill makes it clear that the recipient need not have been deceived or misled by the misleading representation for these provisions to apply. The penalties for violating these provisions are severe – up to 14 years in jail (indictment) or $200,000 and a year in jail (summary conviction). Moreover, the Act also grants courts the power to issue injunctions forbidding conduct that would result in a violation of these offences.
The Competition Act's provisions on Deceptive Marketing Practices are also expanded to deal with these same offences (false or misleading sender information or subject matter information, false or misleading representations in a material respect, false or misleading locators). This renders all of these actions "reviewable conduct" for the Competition Bureau, which brings the prospect of Administrative Monetary Penalties of up to $100,000 for a corporation on a first offence and $200,000 for subsequent orders. Courts can also issue injunctions blocking further illegal conduct. Note that the reforms specify that the Competition Bureau must choose either the false or misleading representation provisions or the deceptive marketing provisions when taking action against a specific incident or conduct.