Legal Research

Banning Spam? et al.?

By John Gregory

The Conservative Party of Canada has announced as part of the current federal election campaign that if re-elected, it will bring forward legislation to ban spam.

The Canadian Press story mentions this (and a number of other consumer-oriented promises).

Earlier this month the Supreme Court of Virginia, in Jaynes v Virginia [PDF], struck down that state’s anti-spam legislation as unconstitutional, because it was ‘over-broad’. Its rules prohibiting misuse or misrepresentation of IP addresses applied not only to commercial but to all messages, including political or religious ones. This was an impermissible infringement on free speech, said the court. As a result, the commercial spammer was acquitted who had been convicted at trial and whose conviction had been upheld at the first level of appeal.

Steptoe and Johnson, the DC law firm, said “the court essentially held that people have a constitutional right to falsify an IP address or domain name, since that is effectively ‘the only way’ to send anonymous email.” (E-Commerce Week # 535, September 20, 2008)

Should the Canadian anti-spam law restrict itself to commercial messages? Would it be appropriate to put on spam the same subject-matter limits that are on telemarketing under the CRTC’s Do-Not-Call rules?

Is there a right to anonymous speech in Canadian law, even for sensitive issues like politics and religion? The Canadian Journal of Law and Technology had an article on the Charter’s freedom of expression and anonymity a few years back by Peter C Keen. And of course Ian Kerr and his colleagues have a mega-project running at U of Ottawa that raises these questions: http://idtrail.org/ (formerly www.anonequity.org). See http://www.idtrail.org/content/view/229/77/ — nothing posted on the anonymity thread since spring 2007 — perhaps it’s all been said.

Full post as published by Slaw.ca on September 26, 2008 (boomark / email).