Appeared in the Toronto Star on October 12, 2009 as Do-Not-Call List Undermined By Loopholes in Law
This month marks the one-year anniversary of the launch of Canada's do-not-call list. Over the past 12 months, millions of Canadians have registered their numbers on the list and filed hundreds of thousands of complaints with the Canadian Radio-television and Telecommunications Commission, which is tasked with enforcing the law.
While the CRTC has found itself subject to considerable criticism for investigating only a small percentage of complaints and levying just a handful of fines for do-not-call violations, a review of tens of thousands of complaints obtained under the Access to Information Act reveals a potentially bigger problem.
Many of Canada's best-known companies have been the target of frequent complaints, yet are not subject to investigation due to the large number of exceptions found in the law. This has led to genuine dismay, with many people using a comment section in the complaint form to register their disappointment with the do-not-call list.
Working together with University of Ottawa students Sean Murtha and Frances Munn, I recently reviewed more than 60,000 complaints released by the CRTC. The complaints were lodged in late 2008 and early 2009 using the do-not-call list's Internet-based complaints mechanism. In each case, the complaint included all relevant information with the exception of the complainant's name and telephone number, which were excluded for privacy reasons.
There were hundreds of complaints about automated calls promising cruise vacations or lawncare services. But the undisputed leader among reputable companies was Bell Canada, which alone was the subject of nearly one thousand complaints. In fact, the wireless sector had the distinction of taking the top three spots with Rogers and Telus ranking second and third respectively. There were also hundreds of complaints against Canada's top financial institutions and retailers including RBC, CIBC, Scotiabank, TD Canada Trust, and Sears.
Businesses exempt under the law similarly faced numerous complaints. For example, Canadians lodged complaints against 27 different newspapers, despite the fact newspapers enjoy a full exception under the do-not-call legislation.
The sheer number of complaints against a who's who of the business community places the spotlight on the gap between what Canadians expect the do-not-call list to cover and what it actually does. Many Canadians reasonably anticipated that placing their phone number on the do-not-call list would mean that the telemarketing calls from telephone companies, banks, retailers, newspapers, and charities would stop.
Yet the law contains large loopholes that let the calls continue. Bell Canada may lead the way on do-not-call complaints, but it seems likely that the Bell calls qualified under the business relationship exception that allows a business to continue to call a customer for a full 18 months after they leave the company. In other words, the law does not restrict calls that try to win back customers or sell existing customers other products or services.
Similarly, there are blanket exceptions for survey companies, political parties, charities, and newspapers. All of those organizations are permitted to continue calling until specifically asked to stop.
The result is that a system designed to restore consumer confidence may actually undermine it with many feeling helpless to stop unwanted telemarketing calls. The enforcement side of the do-not-call list may need improvement, but the more critical change is the elimination of overly broad exceptions that turn the do-not-call list into the do-not-hesitate-to-call list.
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.
