Columns

Anti-Spam Law in Limbo as Lobby Groups Seek New Exceptions

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 dÃ©jÃ 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.

November 1, 2011 — 5 comments — Columns

Was Canada’s Open Government Delay Part of the Plan?

The Canadian government’s open government initiative was back in the spotlight this week with Treasury Board President Tony Clement discussing the issue at a speech in Ottawa. I wrote about the open government in my weekly technology law column (homepage version, Toronto Star version) noting that seven months later the initiative is gathering dust. As of Monday, the original website â€“ online at open.gc.ca â€“ still featured a photo of Day, who retired from politics just one week after the initial announcement. The site had been last updated on March 18, 2011, the same date as the policy announcement. The site was updated over the past couple of days.

While some delays due to the election call were understandable, seven months of inaction led skeptics to wonder whether the entire announcement was little more than a publicity stunt. The delays are particularly discouraging given Canada’s willingness to pressure others about the value of open government. Last month, Canada became one of 46 countries to join the Open Government Partnership, which is focused on the availability of information about governmental activities, supporting civic participation, and increasing access to new technologies for openness and accountability. A letter from Foreign Minister John Baird to U.S. Secretary of State Hillary Clinton confirming Canada’s participation noted the June Speech from the Throne that reaffirmed support for open data, open information, and open dialogue.

October 21, 2011 — 5 comments — Columns

Why Are Consumers Missing from the CRTC’s Online Video Ruling?

My weekly technology column (Toronto Star version, homepage version) notes that earlier this year, the Canadian Radio-Television and Telecommunications Commission launched a consultation into the policy implications of increasingly popular Internet-based video services such as Netflix. The consultation was the CRTC’s response to broadcaster and cultural groups including Bell Media, Astral Media, ACTRA, the Canadian Media Production Association, and SOCAN, who formed the Online Broadcasting Working Group to urge it to step up to the regulatory plate.

While many feared the CRTC would jump at the chance for new Internet regulation, last week it surprised observers by rightly concluding that its consultation generated plenty of rhetoric about the dangers of an unregulated over-the-top video services market, but no evidence of real harm. Given the lack of evidence and the absence of entry barriers for Canadian companies to establish their own competitive offerings, the CRTC decided to open a “watching brief” with the promise to revisit the issue in another fact-finding exercise next year. The CRTC decision concluded “it is best to allow the over-the-top market to continue evolving, better measurement tools to emerge and entities that contribute to the policy objectives of the Act to take advantage of the many opportunities in this new environment.”

This is close to what I suggested might happen back in July, when I noted “given the lack of actual evidence – this has been a fear-finding exercise rather than a fact-finding one – the CRTC should surely label this a watching brief and wait until 2014.” There is a big difference between waiting until the next scheduled new media review in 2014 and kick-starting another examination of the issue next May, however. The CRTC message to the Online Broadcasting Working Group is “if at first you don’t succeed, try, try again.” By opening the door to two reviews in the span of a one-year period, the Commission hold on new Internet regulation may only be a temporary reprieve.

October 11, 2011 — 8 comments — Columns

Hurt Locker File Sharing Lawsuits Put the Hurt on Everyone

File sharing lawsuits involving the movie the Hurt Locker have been big news in the United States for months as tens of thousands of lawsuits have been filed against individuals alleged to have illegally downloaded the movie. The lawsuits have now made their way into Canada as the Federal Court of Canada has ordered the identification of subscribers at Bell Canada, Cogeco, and Videotron who face similar copyright infringement claims.

Late last month the court ordered the three ISPs to disclose the names and addresses of subscribers linked to IP addresses alleged to have copied the movie. The ISPs complied last week as lawyers for the Hurt Locker copyright owner moved to have their case treated as a “specially managed proceeding” that would put the case on a rocket docket.

My weekly technology law column (Toronto Star version, homepage version) argues the lawsuits hurt seemingly everyone.

September 19, 2011 — 67 comments — Columns

Digital Issues Largely Missing From Ontario Election Campaign

The Ontario election campaign kicked off last week with the Liberals, Progressive Conservatives, and NDP promoting their policy platforms and quickly jumping into debates on the economy, health care and education. While the dominance of those three issues is unsurprising, my weekly technology law column (Toronto Star version, homepage version) notes those Ontarians hoping for some discussion of digital policy were bound to be a bit disappointed.

The Liberal platform references the importance of jobs in the technology and media sectors, but offers little else on the digital economy. The Progressive Conservatives are the only party to make a commitment to open government – their platform follows developments in many other jurisdictions that pledge to make government data more readily available for public use – but other digital issues are ignored. The NDP makes no reference to digital policies at all.

The federal government tends to lead on digital policies, though its much-anticipated digital economy strategy is months overdue. Yet for constitutional reasons that grant the provinces jurisdiction over property and civil rights, many important issues fall to the provinces.

September 13, 2011 — 11 comments — Columns