Attorneys and executives yesterday urged the Commons industry committee to rewrite a 2014 anti-spam law. MPs were told current regulations are too broad, target the wrong people, and are largely ineffectual in combating malware.
“We’re talking about a piece of legislation that is breathtakingly large in scope,” said Scott Smith, director of innovation policy for the Canadian Chamber of Commerce; “Organizations are struggling with anti-spam compliance.”
Bill C-28 An Act To Promote The Efficiency & Adaptability Of The Canadian Economy restricts unsolicited “commercial electronic messages” with exemptions for emails to current customers, warranty and bank notices, and responses to emailed questions. The Act defines restricted email as any message with data, hyperlinks or contact information intended to “encourage participating in a commercial activity”.
Lawyer Barry Sookman, senior partner with McCarthy Tétrault LLP of Toronto, said the Act casts such a wide net it prohibits even innocuous emails from charities or small business start-ups. “Canada’s anti-spam legislation makes it illegal for a child to email neighbours promoting a lemonade stand or asking if they want a babysitter or whether they can mow their lawns,” said Sookman.
“The legislation as it was articulated was to actually protect consumers against malware, spyware, phishing,” said Sookman; “What’s happened in the real world, not the theoretical world of those people who conceived of the legislation? It has had no material impact on the purveyors of damaging spam or malware.”
“The burdens fall on legitimate businesses,” said Sookman; “It’s small businesses, sole proprietorships; it’s everybody who is caught by the breadth of this legislation.”
“Consumers obviously don’t want to get malicious types of spam,” said Sookman. “They may think the legislation is the reason they aren’t getting as much. The real reason has nothing to do with the legislation; it’s the anti-spam filters that they have.”
More Than A Million Complaints
Regulators received more than 1.1 million spam complaints since enacting the law three years ago. Consumer advocates said they believed the Act has worked, but acknowledged a lack of data. “We are here today largely in the dark regarding the effect of the legislation on spam or electronic messaging,” said John Lawford, executive director of the Public Interest Advocacy Centre.
“The decision was made to put consumers in control in 2014,” said Lawford. “We think it’s the right decision. If there are many people competing to get your attention, that spam builds up.”
“Companies can still reach Canadians by email; there is no commercial email ban,” said Lawford; “Marketers are here to defend stale lists and lazy marketing.”
MP Brian Masse (Windsor West, Ont.), New Democrat industry critic, noted Canada “was one of the few G7 countries without anti-spam legislation” prior to the Act. “It’s a privilege to send me marketing information, even if I am a customer,” said Masse. “It’s not their right, it’s a privilege. I approach it from that perspective.”
Witnesses yesterday recommended MPs exempt business-to-business communication from anti-spam rules, and more narrowly define unsolicited commercial communications. An attorney for Desjardins Group credit unions said the Act as written is so vague, it would prohibit managers from sending unsolicited anti-fraud notices with hyperlinks or a corporate logo.
Executives also sought the permanent repeal of a “right of action” clause written into the Act but never enforced. The provision allowed consumers to file individual $200 compensation claims against companies accused of sending unsolicited emails. Cabinet suspended enforcement last June 7, three weeks before the clause was to come into effect.
“We think that recourse should be completely withdrawn from this legislation,” said Aisha Fournier Diallo, senior counsel for Desjardins Group. “The Canadian Radio Television & Telecommunications Commission is the regulator, and it’s preferable to turn to such an agency rather than clog up the courts with interpretation of this legislation.”
By Tom Korski 
