New Anti-Spam Bill in Canada

On May 25, 2010 the Canadian government introduced Bill C-28, the Fighting Internet and Wireless Spam Act (FISA). FISA is almost identical to Bill C-27, the Electronic Commerce Protection Act (EPCA), which was introduced in April 2009 and nearly passed by the government in December of 2009 before dying due to Prime Minister Harper’s proroguing of Parliament.

Industry Minister Tony Clement said that the new Bill C-28 should be law by the end of the year. Under the proposed legislation, the government will establish a spam-reporting centre to work with the government enforcement agencies with the power to shut down sites. Charities, political parties, pollsters and businesses with an established relationship with a recipient would be exempt from the new controls.

Essentially the same as the ECPA, Bill C-28 targets the sending of what we would typically call spam, or unwanted commercial email, as well as spyware and phishing. It also gives a private right of action, which allows anyone to take civil action against violators. Finally, under FISA, the Canadian Radio-television and Telecommunications Commission (CRTC) and Competition Bureau would be able to impose monetary penalties of $750,000 to $1 million per violation for individuals, and $10 million to $15 million for businesses.

The Bill should reduce unwanted and unsolicited emails that clog up email systems, which in turn reduce productivity, violate privacy, and often promote fraud. However, critics argue that Bill C-28 is not strong enough and that it is definitely “the product of considerable compromise.” Furthermore, Bill C-28 has been criticized as being too broad and general in its definitions. For example, the Bill defines spam as a commercial message sent via email, IM, phone, or similar method. Sending spam is prohibited unless the recipient has consented, and the message contains certain prescribed information identifying the sender and how to unsubscribe. Also, the volume of the messages does not seem to be important. This means that one email or text message to one recipient can be considered spam. This approach would ban an extremely broad class of commercial activity.

While the goal of Bill C-28 is to prevent spam and identify theft, this Bill will also have a big impact on businesses that use email and other electronic messages as a component of their marketing and advertising activities. Consent, explicit or implicit, is mandatory. However, it will not be easy for businesses to obtain the necessary prior consent from all recipients of commercial electronic messages, due to the detailed requirements for consent. Moreover, businesses will have to put in place a system to categorize their commercial electronic messages, to ensure that their content is reviewed prior to being sent out and to make sure that all the recipients have provided his or her explicit consent.

For the first reading of Bill C-28, 3d Sess., 40 th Parl., 2010, visit:
http://tinyurl.com/35vq8on

For additional information, visit:
http://www.thestar.com/business/article/814278--new-anti-spam-laws

Volume VIII

New Anti-Spam Bill in Canada