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Canada Introduces Electronic Commerce Protection Act (aka Anti-Spam Bill)

By Michael Geist

Four years after the National Task Force on Spam unanimously recommended that the Canadian government introduce anti-spam legislation, the Government today took an important step forward by tabling Bill C-27, the Electronic Commerce Protection Act (bill not online yet).   Although the bill requires careful study before commenting in any detail, Industry Minister Tony Clement's introduction of the bill is welcome news and long overdue.  Canada is one of the only major developed countries without anti-spam legislation and the prospect of developing into a true spam haven was becoming a very real possibility.

Based on today's release, the ECPA addresses many of the shortcomings of the current Canadian legal framework, including the need for stiff penalties (the bill includes possible penalties of up to $10 million), broad definitions of unsolicited commercial electronic messages (including text-message spam), targeted provisions against phishing and spyware, a private right of action to open the door to lawsuits againts spammers, as well as greater government cooperation, a "national coordinating body", and a Spam Reporting Centre. Many of these provisions are consistent with the recommendations of the Task Force and remain as relevant and valid today as they were four years ago.

While the ECPA should receive all-party support (no one can possibly be supportive of spam), Canadians should be aware of its limitations.  No legislation will eliminate spam from your in-box.  Rather, the bill is designed to reduce spam that originates in Canada.  In order to accomplish that goal, the law must be aggressively enforced, yet much of the enforcement responsibility lies with the CRTC, which has not inspired confidence based on its enforcement to-date of the do-not-call list. 

Moreover, it is worth comparing the differing approaches to unwanted email marketing vs. unwanted telemarketing.  The ECPA adopts a consent based model - with few exceptions (charities, political parties, MP candidates with a prior commercial relationship), commercial email marketing without consent is treated as spam and subject to potential liability.  Contrast that with the do-not-call list, where despite the clear indication that consumers do not want telemarketing calls (by registering their numbers on the do-not-call list), the law contains far more exceptions that allow the calls to continue (I note the inconsistency not to argue for exceptions under the ECPA, but rather to promote a similar approach for do-not-call).  Clement and the Government have taken a positive step forward with anti-spam legislation and should consider whether this opens the door to addressing the obvious shortcomings that remain under do-not-call legislation.  I'll have more to say on the ECPA in the days ahead.

Full post as published by Michael Geist on April 24, 2009 (boomark / email).