Earlier this week, I wrote about the mounting lobbyist pressure to water down Bill C-27, Canada's anti-spam bill. The pressure in recent hearings has been intense – Amazon was generally supportive of the bill but still sought an implied consent for existing customers for five to seven years (in other words, seven years to simply ask if the customer wants to receive future emails), the Entertainment Software Association and the Canadian Intellectual Property Council teamed up to warn that the bill would put Canada at a competitive disadvantage, and the Canadian Bankers Association called on the Industry Committee to completely gut the bill by dropping opt-in consent and the private right of action provisions.
Yesterday I attended the last committee meeting before clause-by-clause review as government officials appeared to propose reforms and address committee concerns. The meeting showed the lobbying efforts are bearing fruit as officials proposed 40 changes to the bill. While some are technical, there are several significant suggested reforms. Moreover, the lobbying continued, as Liberal and Bloc MPs appeared to work actively to raise lobbyist issues.
First, the proposed reforms, which include:
- changing the definition of "computer program" to exclude "a text file that is not independently executable" (ie. exclude cookies from the definition)
- a new exception for third-party referrals. The referral provision allows for a single message where there is a referral from someone with a personal or family relationship. It also requires the marketer to disclose the source of the referral in their message.
- a new exception for quotes or estimates of goods or services if requested by the person to whom the message is sent
- a new exception for the completion or confirmation of an ongoing commercial transaction
- a new exception for warranty or safety information
- a new exception for ongoing subscriptions, loans or similar relationships
- a new exception for information related to an employment relationship
- a new exception for product updates or upgrades
- a new exception for solicitation to participate in surveys or market research
- a new exception for information on self-governing professions
- a clarification that the existing business relationship continues if the business is sold
- the removal of the need for explicit consent for software programs for updates or upgrades where consent was obtained earlier
- an expansion of implied consent to include instances where the person has published their email address or provided their email address to the sender and the message is relevant to their business or role.
- an extension of the time to remove a person from a mailing list to ten business days
- a "grandfathering" of the need to obtain consent in an existing business relationship to three years from when the Act takes effect (double from 18 months)
The sum total of these changes would be pretty significant – many new exceptions to cover various commercial messages that could have been easily covered by consent, specific exceptions for lobby groups like survey companies (widely abused in do-not-call) and professional associations, a new referral exception for realtors, and a three-year initial period to address concerns from companies like Amazon. Note that these are proposals and not yet adopted by the committee.
While these are big proposed changes, it is clear that the lobby groups would like more, particularly a shift from opt-in to opt-out consent. At yesterday's hearing, it was discouraging to see lobbyists for Canadian Chamber of Commerce and Canadian Intellectual Property Council huddling with Liberal MPs before the start of the hearing. It was even more incredible to see lobbyists for the Canadian Real Estate Association draft a series of questions about the bill, hand them to a Bloc MP, and have them posed to the witnesses moments later.
The general tenor of the hearing saw support from the Conservative MPs, general support from the NDP MP (with some fear that the bill may be watered down with the proposed amendments), CREA questions from the Bloc, and a repetition of lobbyist questions from the Liberal MPs, who persistently wondered whether the bill is too broad or even too transparent (raising the possibility of excluding it from Access to Information).
Anti-spam legislation should not be a partisan issue, but it appears that lobbyists are targeting Liberal and Bloc MPs in the hope of garnering support for a further watering down of the bill. The clause-by-clause review is slated for Monday, October 19th. If Canadians want an anti-spam bill with some teeth, they are going to have to fight for it. Consider writing to your MP or the members of the Industry Committee today asking them to support C-27 with an opt-in approach. The members of the committee include: