February 12, 2013 12:22 pm
Updated: March 24, 2013 9:38 pm

Canadian business groups push back against anti-spam law

Ottawa's new anti-spam law takes effect July 1, 2014.

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TORONTO – Canadian industry groups are fighting Canada’s anti-spam legislation designed to cut down on spyware and spamming in Canada.

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The Canadian Chamber of Commerce, the Canadian Marketing Association, the Canadian Wireless Telecommunications Association and the Entertainment Software Association of Canada submitted a lengthy document that opposes much of the law.

The anti-spam and anti-spyware legislation, likely to take effect by the end of 2013, would include new rules that would require opt-in consent for electronic marketing, as well as the installation of computer programs such as spyware.

In simpler terms, the law, which has been approved but not yet put in place, would help cut down on unwanted “junk mail” in Canadians’ inboxes and force third parties to obtain consent from the user to install any sort of spyware.

Companies had until this week to submit ‘comments’ on the law, voicing their opposition.

Global News spoke with Michael Geist, law professor and Canada Research Chair in Internet and E-commerce law at the University of Ottawa, regarding the anti-spam legislation and why Industry groups are fighting back.

Global News: What effect will the anti-spam legislation have on the average Canadian?

Geist: I think it will have a huge effect on Canadians. While I don’t know that anybody has suggested that this is going to eradicate spam from their inboxes, what it will do is provide them with far greater control over what kind of electronic marketing they receive because now companies will be required to have obtained opt-in consent in most situations.

For Canadians frustrated and tired with a seemingly barrage of marketing that they don’t feel like they asked for and simply can’t be bothered to continually try to opt-out of, this should change the dynamic a little bit by providing a little bit more control.

Frankly this will provide them with the marketing they want to see.

GN: What do the proposed changes mean and how would it change the legislation?

Geist: In many ways I think what the industry groups want changed would reverse what the legislation seeks to do. The legislation is both anti-spyware and anti-spam; it really tries to reshape the ways electronic marketing exists in Canada and move towards a much stronger consent-based model.

It’s surprising to see some of the opposition to the bill generally, but particularly the spyware provision – that would open the door to installing computer programs on peoples’ computers for a wide range of purposes, even enforcing foreign laws.

GN: Why do these business groups want to change provisions to the anti-spam law?

Geist: The opposition stems a lot from frustration with a change in the law that really does require upfront explicit consent. This will, in some instances, require some businesses to change the way they engage in electronic marketing.

I think [the anti-spam law] has the potential to make it more effective by ensuring that they’ve got consent and that they are marketing to people that actually want to hear from them. But, for some businesses, that have grown accustomed to what’s described as an opt-out world, one in which they can market away and its only when someone proactively says stop they will have to – that world seems to fray them a little bit. Then we get the the kind of opposition that we have started to see.

Currently the Canadian law reads as follows:

8. (1) A person must not, in the course of a commercial activity, install or cause to be installed a computer program on any other person’s computer system or, having so installed or caused to be installed a computer program, cause an electronic message to be sent from that computer system, unless

(a) the person has obtained the express consent of the owner or an authorized user of the computer system and complies with subsection 11(5); or

(b) the person is acting in accordance with a court order.

The Industry groups have requested that a “Review Body” look at the wording, or include the following wording instead.

… the following computer programs be exempt from section 8 of the Act:

(a) a program that is installed by or on behalf of a person to prevent, detect, investigate, or terminate activities that the person reasonably believes (i) present a risk or threatens the security, privacy, or unauthorized or fraudulent use, of a computer system, telecommunications facility, or network, or (ii) involves the contravention of any law of Canada, of a province or municipality of Canada or of a foreign state;

For more information about the anti-spam legislation visit the Goverment of Canada website.

© 2013 Shaw Media

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