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Canadian Anti-Spam Deal Far From a Done Deal

The introduction last spring of Bill C-27 - the Electronic Commerce Protection Act - represented the culmination of years of effort to address concerns that Canada is rapidly emerging as a spam haven.  Industry Minister Tony Clement’s anti-spam bill has steadily made its way through the legislative process, with the Standing Committee on Industry likely to conduct its final "clause by clause" review over the next two weeks.

Although support for anti-spam legislation would seemingly be uncontroversial, various business groups have mounted a spirited attack against the bill, claiming requirements to obtain to user consent before sending commercial email will create new barriers to doing business online.  The Conservative MPs on the committee have remained supportive of the bill, yet Liberal MPs have expressed growing concern about some of the bill’s provisions.

A close examination reveals that the bill sets reasonable limits for online marketing consistent with laws found in countries such as Australia, New Zealand, and Japan.  In fact, there are four major caveats to the consent requirement.

First, the bill includes a business-to-business exception so that businesses that send commercial email to other businesses are immediately exempt from the need to obtain consent.

Second, the bill only applies to commercial email.  Non-commercial email between friends, family, and colleagues is excluded.

Third, a wide range of business-to-consumer commercial email is also outside the ambit of the bill.  For example, businesses can rely on "implied consent" to contact existing customers for a full 18 months and even contact non-customers who merely make an inquiry for six months.  In other words, simply inquiring about long distance plans or hotel room availability opens the door to six months of electronic messaging under the guise of implied consent.

Fourth, all other commercial messaging to consumers is permitted - there are no limits - so long as the business has obtained prior consent.  There are some form requirements, but nothing that should be considered particularly onerous.

Notwithstanding the implementation of similar opt-in systems elsewhere, some Canadian businesses argue that obtaining prior consent is problematic.  These groups would prefer an "opt-out" approach whereby they could continue to send electronic messages to consumers and force them to request that no further messages be sent.

Whenever such concerns are raised, politicians would do well to ask a simple question - is obtaining consumer consent really so unreasonable?  It is unreasonable to obtain consent before sending a commercial message about a new service or product?  Is it unreasonable to obtain consent before installing software on a personal computer?  In most instances, the answer is no.

Canadians frustrated with the lobbying against the anti-spam bill can be forgiven for experiencing a sense of déjà vu since it bears a striking similarity to the efforts to water down Canada's do-not-call list.  When the bill establishing the do-not-call list was first introduced, it featured strict limitations on unwanted telemarketing.  

However, after weeks of business lobbying, the bill was gutted with new exceptions for business relationships, charities, political parties, polling companies, and newspapers.  The end-result is that the majority of telemarketing calls remain perfectly legal, despite the inclusion of millions of phone numbers on the Canadian do-not-call list.

History may repeat itself this week with the anti-spam bill. While this should be a non-partisan issue, reservations from some opposition MPs about the content of the bill suggest that Canada’s contribution to the fight against spam is still far from a done deal.

Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can reached at