No Spam by Thomas Hawk (CC BY-NC 2.0)

No Spam by Thomas Hawk (CC BY-NC 2.0)


The Trouble with the TPP, Day 15: Weak Anti-Spam Law Standards

The Trouble with the TPP and privacy, which includes weak privacy laws, restrictions on data localization, bans on data transfer restrictions, and a failure to obtain privacy assurances from the U.S., also includes the agreement’s weak anti-spam standards. Given the fact that nearly all TPP countries have some form of anti-spam law (with the exception of Brunei), the inclusion of anti-spam provision in the TPP was not surprising, yet the agreement sets the bar far lower than that found in many countries. Article 14.14 states:

Each Party shall adopt or maintain measures regarding unsolicited commercial electronic messages that:
(a) require suppliers of unsolicited commercial electronic messages to facilitate the ability of recipients to prevent ongoing reception of those messages;
(b) require the consent, as specified according to the laws and regulations of each Party, of recipients to receive commercial electronic messages; or
(c) otherwise provide for the minimisation of unsolicited commercial electronic messages.

The TPP provision features two key requirements: anti-spam laws that provide for a binding unsubscribe mechanism and some form of consent. Yet with the standard of consent left wide open, countries are free to adopt weak, ineffective standards and still comply with the TPP requirements. In fact, since spam raises global concerns that frequently requires cross-border co-operation, the TPP would have been an ideal mechanism to strengthen international anti-spam rules and enforcement.

For example, the Canadian anti-spam law establishes an opt-in requirement for consent to receive commercial electronic messages. The same is true in leading TPP countries such as Japan and Australia (and the European Union). Setting a higher bar for consent would have improved privacy and the effectiveness of anti-spam laws throughout the TPP member countries.

Similarly, Canada’s penalties for anti-spam violations were a direct result of Australian success with serious penalties for anti-spam violations. Despite the success, there are no prescribed penalties in the TPP, meaning that even cross-border anti-spam crackdowns within TPP countries may be undermined by inconsistent penalties and enforcement powers.

(prior posts in the series include Day 1: US Blocks Balancing Provisions, Day 2: Locking in Digital Locks, Day 3: Copyright Term Extension, Day 4: Copyright Notice and Takedown Rules, Day 5: Rights Holders “Shall” vs. Users “May”, Day 6: Price of Entry, Day 7: Patent Term Extensions, Day 8: Locking in Biologics Protection, Day 9: Limits on Medical Devices and Pharma Data Collection, Day 10: Criminalization of Trade Secret Law, Day 11: Weak Privacy Standards, Day 12: Restrictions on Data Localization Requirements, Day 13: Ban on Data Transfer Restrictions, Day 14: No U.S. Assurances for Canada on Privacy)


  1. I have waited very long to hear you explicate the terms of the TPP. So far I must say I have not been disappointed. I particularly appreciate this series of articles.

    This whole affair is beyond improper, it’s passed obscene and the combined imagination efforts of great fiction writers everywhere. It’s the epitome of total bonkers. It’s a carefully crafted temper tantrum thrown by radical capitalists, forget the concept of investor-states, financial maniacs driven in psychosis to officialize their status as ruling class through international legislation.

    It’s confirmation of the financial empires and the crowning of the corporate kingdoms, with their own sets of rules of law, rights and privilege to set them apart from the lowly citizens who are bound by the laws of those very same countries whose supposed representatives are willing to sign away their rights and freedoms, after secretly negotiating the terms no less, with not even the pretended effort of transparency or public consent, with a smile and all the world’s assurances that it’s for their best interest, in a deal that considers them nothing more than a workforce of consumers and which amounts for the democratic state to capitulation and submission of its national sovereignty to the dying throws of a perishing ideology, a dying model of wealth and prosperity unfit to survive the future of humanity without violently imposing it’s will through the institutionalized injustice of corrupt governments, the careful control and flow of misinformation, distraction and confusion, through fear mongering, intimidation, market manipulation and financial trickery, establishing an industrial economic construct of their own fancy as the obviously superior and unquestionable administrative path to follow and in which they legally own all the rights and are the all knowing masters and only relevant authority on, answerable only to tribunals of their own making, bullying their way with the power of capital through multifaceted agreements that will ultimately profit not the general population to be bound by them, who will in all considerations not benefit in any substantial way from this -quite the contrary as many alternatives would by far better serve the common good, this Day 15 in The Trouble with… series give a good example-, but the very same who have already shown an incredible ability to abuse a system already skewed in their favor.

    It’s a take it or leave it endeavor too isn’t it? At this juncture, it’s sign it as is or step back. Does anybody actually believe our elected officials have any intention of rejecting such insanity, of backing out of this obviously unsatisfactory deal? They (should) know all about this preposterous content already and yet they continue entertaining it, they continue trying to sell its merits to their constituents. It stinks. It belongs in the dictionary next to the word stinks. It reeks of political corruption and conflict of interest. It’s a sell out plain and simple. A cheap cleverly orchestrated sell out meant to pass as the important and unavoidable historic treaty of global cooperation and trade, the symbol of our common efforts in a struggle towards a more just and more fair world, the unanimous declaration from a diversity of peoples and nations to strive together in solidarity towards a better future for humanity, a true and collectively debated through transparent public means accord of free collaboration and exchange between equals, the authentic partnership that we really need. A poor substitute.

    Instead we are left with only two options: accept or reject the legislative nightmare dreamed up by chief industry and corporate lobby in secret over the better part of the last decade and approved by seemingly unaccountable powerless politicians. At this point, their un-mandated competence in brokering such biased alliances is questionable. This is beyond their jurisdiction, beyond the power and responsibilities their short terms in office can bare. It breaches the trust of the democratic system. It makes a mockery of the ideals and value nations like ours seek to build themselves upon. It’s beyond nonsense, is drivel… take out your thesauruses!… in this age of environmental and climate awareness, it’s a near criminal waste of energy and resources on solutions which will only make matters worse for in near practicality the entirety of worldwide populations, not to speak of those living in the involved countries.

    M. Geist I find words unable to express the appreciation I have of the serious hard work you display in analyzing these documents for us and shedding a much needed light on the issues they raise. Thank you.

  2. Pingback: The Trouble With the TPP, Day 34: PMO Was Advised Canada at a Negotiating Disadvantage | Ecocide Alert

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  4. Praise the lord that the TPP weakens Canada’s anti spam law. It’s already giving foreign companies a huge competitive advantage in that they can basically violate the law with little chance of enforcement action.