Contributing Lawyers

Canada

Cyndee Todgham Cherniak

United States

Susan Kohn Ross

Australia

Andrew Hudson



Canada Introduces Electronic Commerce Protection Act to Stop Spam

On April 24, 2009, Canada's Minister of Industry announced that the government has introduced Bill C-27 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 ("Electronic Commerce Protection Act" or the "ECPA") in the House of Commons. To view a copy of the ECPA, please go to the following link - http://www2.parl.gc.ca/HousePublications/Publication.aspx?Docid=3832885&file=4

Minister Clement announced at the Greater Toronto marketing Alliance meeting on April 24th that the ECPA is long overdue. Canada is filling a gap far behind its G-8 cohorts. The National Task Force on Spam unanimously recommended that the Canadian government introduce anti-spam legislation and the government is taking action - better late than never. The ECPA will be the subject of careful review over the coming weeks.

The purpose of the ECPA is is to promote the efficiency and adaptability of the Canadian economy by regulating commercial conduct that discourages the use of electronic means to carry out commercial activities, because that conduct:

(a) impairs the availability, reliability, efficiency and optimal use of electronic means to carry out commercial activities;

(b) imposes additional costs on businesses and consumers;

(c) compromises privacy and the security of confidential information; and

(d) undermines the confidence of Canadians in the use of electronic means of communication to carry out their commercial activities in Canada and abroad.

The ECPA prohibits the sending of commercial electronic messages without the prior consent of the recipient and provides rules governing the sending of those types of messages, including a mechanism for the withdrawal of consent. It also prohibits other practices that discourage reliance on electronic means of carrying out commercial activities, such as those relating to the alteration of data transmissions and the unauthorized installation of computer programs. In addition, the proposed legislation treats unsolicited text messages, or “cellphone spam,” as “unsolicited commercial electronic messages.”

The proposed Electronic Commerce Protection Act will deter the most dangerous forms of spam, such as identity theft, phishing and spyware, from occurring in Canada and will help drive spammers out of Canada.

In addition, the ECPA creates a private party dispute settlement mechanism. The ECPA would allow businesses and consumers to take civil action against anyone who violates the Act.

The Canadian Radio-television and Telecommunications Commission (CRTC), the Competition Bureau and the Office of the Privacy Commissioner will be given the power to share information and evidence with their counterparts in other countries who enforce similar laws internationally, so that violators beyond our borders cannot use Canada as a spam safe haven. The proposed ECPA would allow the CRTC and the Competition Bureau to charge offenders with administrative monetary penalties of up to $1 million for individuals, and $10 million for all other offenders.

While the ECPA will have to proceed through Canada's legislative process, it is expected to pass as it is unlikely the MPs will support the continued proliferation of SPAM, spyware and other negative internet activities. However, the ECPA and its civil penalties will not be able to stop the SPAM arriving in Canada from offshore locations. It may be limit the desirability of SPAMmers who currently operate from Canada ---hopefully.

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