Legal Research

Anti-Spam Legislation Passed, Awaits Proclamation

By Simon Fodden

David Canton has kept Slawyers abreast of developments concerning Canada’s anti-spam legislation: FISA ? New Anti-Spam Bill Introduced; Plethora of Pending IT Legislation. But we neglected to report that Bill C-28 passed third reading on December 14 and received Royal Assent a day later. Evidently, it won’t be proclaimed in force until September of 2011, to give us all time to get our acts together.

The text of the statute is available here [PDF].

I’ve been coy about naming the beast (78 pages in the official version), because the name it goes by appears nowhere in the act. Everyone calls it FISA, which (almost) stands for Fighting Internet and Wireless Spam. But the proper name of the act is:

An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio- television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act

(Which, omitting the “little” words and the amendments, comes out to: PEACERCADREMCOCOA. Now, PEACE and COCOA — two of my favourite things — would work for me, and RCADREM is fairly pronounceable. Even so, you can see why folks have stuck with the old name. Notice, though, that nowhere in the legislation do the words “fighting” “internet” “wireless” or “spam” appear. I wonder what the interpretive status is of a non-title, non-marginal note.)

This is complex legislation that has come late to the world of spam. Canada is the last of the G-8 nations to pass an anti-spam law, which means two, perhaps opposing things: we’ve become very much used to sending emails (tweets, texts, etc.) unhindered by any law much beyond defamation; and our legislators have been able to learn from all the other countries that have assailed spam with varying degrees of success. Could be a bumpy right until we all figure out what’s what.

To help you do that, have a look first at Roland Hung’s precis of the bill in a special Gowlings newsletter. Then go to the earlier and broader legislative summary prepared last May for a slightly different version of the statute by Alysia Davies, from the Legal and Legislative Affairs Division of the Parliamentary Information and Research Service.

To give you a partial sense of how this law might change the way even non-spammers do things (or change our view of what constitutes “spam”), look at the first part of s.6:

6. (1) It is prohibited to send or cause or permit to be sent to an electronic address a commercial electronic message unless
(a) the person to whom the message is sent has consented to receiving it, whether the consent is express or implied; . . .

You can see immediately the stress that will be placed on the definition of “commercial electronic message”:

1. (2) . . . a commercial electronic message is an electronic message that, having regard to the content of the message, the hyperlinks in the message to content on a website or other database, or the contact information contained in the message, it would be reasonable to conclude has as its purpose, or one of its purposes, to encourage participation in a commercial activity . . .

And lest you think you can escape the Catch 22 implicit in s.6:

1. (3) An electronic message that contains a request for consent to send a message described in subsection (2) is also considered to be a commercial electronic message.

This is going to be interesting.

Full post as published by Slaw.ca on December 30, 2010 (boomark / email).