Electronic Commerce Protection Act

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

This bill was last introduced in the 40th Parliament, 2nd Session, which ended in December 2009.

Sponsor

Tony Clement  Conservative

Status

In committee (Senate), as of Dec. 15, 2009
(This bill did not become law.)

Summary

This is from the published bill. The Library of Parliament often publishes better independent summaries.

This enactment establishes a regulatory framework 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.

It enacts the Electronic Commerce Protection Act, which 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, that Act provides for the imposition of administrative monetary penalties by the Canadian Radio-television and Telecommunications Commission, after taking into account specified factors. It also provides for a private right of action that enables a person affected by an act or omission that constitutes a contravention under that Act to obtain an amount equal to the actual amount of the loss or damage suffered, or expenses incurred, and statutory damages for the contravention.

This enactment amends the Competition Act to prohibit false or misleading commercial representations made electronically.

It also amends the Personal Information Protection and Electronic Documents Act to prohibit the collection of personal information by means of unauthorized access to computer systems, and the unauthorized compiling of lists of electronic addresses.

Finally, it makes related amendments to the Competition Act, the Personal Information Protection and Electronic Documents Act, the Canadian Radio-television and Telecommunications Commission Act and the Telecommunications Act.

Elsewhere

All sorts of information on this bill is available at LEGISinfo, provided by the Library of Parliament. You can also read the full text of the bill.

Electronic Commerce Protection ActGovernment Orders

November 30th, 2009 / 4:20 p.m.
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NDP

Brian Masse NDP Windsor West, ON

Mr. Speaker, I am pleased to rise on Bill C-27. I will read the precursor to the bill so that the public knows what we are talking about.

This is known as the anti-spam bill, but in particular it 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.

This is about limiting electronic messaging that is unsolicited and unwanted which is coming across the Internet to many people in their homes and businesses. It is affecting the economy and the productivity of Canada and. in my opinion, is also a breach of consumer rights in many respects.

This is the reference in terms of the informal notation of spam. We all have received it in our mailboxes, whether it is an account at work or at home where we have received unsolicited electronic messaging.

I was pleased to support the government when it brought forward Bill C-27. It had interesting dynamics on the political front because during this process, it appeared the government would cave to a number of different initiatives from the Bloc and the Liberals to weaken the bill, but that was prevented at committee. We do have, I believe, all party support right now to bring a piece of legislation in line, which we can all be proud of and that will benefit consumers and the Canadian economy.

I would like to note that I am a bit worried about where the government is going with this legislation in terms of prioritization. We made an effort in the committee to work through this really quickly and I gave my personal word to move through this really quickly. We did get that done at committee and we did ensure that we preserved the fundamentals of the bill. There was some weakening of it, which I did not agree with, but at least it still meets the test at the end of the day.

It then took literally weeks before it appeared back here in the House of Commons and is finally coming back here again. It needs to be voted on again here in the House of Commons before it can move to the other place, the Senate. Unfortunately, some other bills have been stalling in the Senate. I do not know the politics between the Liberal and the Conservative Parties with regard to some of the legislation, but one of them I would note is Bill C-6, which is critical because it relates once again to consumer product safety for recall.

I would point out more recent examples. There was the one with the baby cribs, but there was also the one with regard to Toyota products where four million Americans received a recall notice related to brake and acceleration issues caused by the floor mats. Meanwhile, the 200,000 Canadians who had the same problem over here only got a public announcement on a website posting at their expense really.

I do not know why. I have written Toyota and asked why it has not done this for Canadians. It is ridiculous. Our public safety and a number of things are at risk.

However, that is an example of a bill that is stalled and we do not know where it is going to go.

The bill enjoys strong public support and it has the support of the New Democratic Party. This is part of our electoral platform in moving a number of consumer issues forward that we really want to see implemented as law. The other place will have to do some work on this bill and there will be some lobby efforts on this bill. That happened at our committee. I could be wrong but if I am not mistaken, some members of the other parties were accepting questions literally from the lobbyists in the meetings.

I think there will be a push to weaken the bill. However, some elements in the bill make it really strong and make it a good bill for Canadians and Canadian businesses because it affects our economy.

When we look at the issue of spam and electronic messaging, we need to recognize that Canada is in the top 10 and one of the few countries in the G8 that do not have this type of legislation. We are behind. We can catch up with this bill quite significantly and have one of the better models to deal with the issue.

Approximately 5% of the spam in the world comes from Canada. We are actually known as a harbour of some of the actual big spammers out there. I think we stand fourth in the world in terms of spamming, behind Russia and just ahead of Brazil.

We heard this before and it was important that we change it in terms of some of our workings with the United States. In the past, movies playing in Canadian theatres could be taped and that technically was not illegal. We were able to solve that problem over a year ago, giving credit to the way the Canadian market worked in terms of being fair to consumers and the industry. I see the same with this bill.

The model that is being proposed in this bill is a bit different than the United States. The United States passed a law in 2003 called controlling the assault of non-solicited pornography and marketing act. The U.S. calls this bill the can the spam bill because there is an opt out clause. An individual must opt out from receiving information.

Canada would have a much more proficient system with this bill. If an individual does not have an existing business relationship or does not have permission, then he or she should not be sending unsolicited emails. This would be a better system because it would clean things up more profoundly.

Some good things have taken place with regard to the United States system. There have been some charges related to it and there has been a reduction in spam. However, nothing will solve this problem outright. There is no doubt that no matter what law we put in place, there will be some challenges. There will be those who will always break the law. It does not matter what law we actually set in this chamber because there are always those who will take advantage of other people despite their economic and personal issues.

Electronic commerce activity is increasingly important in a competitive world. It is also important for us to meet our needs on the telecommunications run as we learn about the world and the use the Internet. Harboured down with approximately 87% of activity being electronic messaging undermines the Internet.

It is important to note that some good electronic commerce does take place. Businesses can effectively use it for advertising their services. Consumers want to use electronic commerce and that will continue, but there will be some regulation under this bill. This bill would take away some of the most offensive and egregious issues. Individuals would be penalized. Private action could take place as well, which is another strong point of the bill. I will get into this later in my speech.

As I mentioned, spam represents about 87% of email activity around the world. Last year it was estimated that 62 trillion spam emails were sent out and it is done in a variety of ways. This bill would identify some of those ways and eliminate them. I will get into a few of those as well.

An Ipsos Reid poll found that approximately 130 spam messages are received by Canadians each week, and that is troubling because that is up 51% from the year before. It is not just the irritation of removing unwanted messages and solicitations but it is also time-consuming. Employers are worried about the time this takes and the cost.

I do want to make a point that we in the NDP have been really strong on in terms of consumer rights. It is not a right to send these messages, it is actually a privilege. Let us think about that. When people purchase a computer or other electronic equipment that receives messages, they pay for that out of their own pocket. They also pay to maintain that equipment as well as paying for continual upgrades to software and so forth to ensure it is working efficiently. They also pay for the Internet service, the actual conductor of the information. Those who are sending spam need to understand that.

It should not just be an absolute right that we get inundated by activity, especially when we have some in the marketplace who are using malware and other types of spy software to try to gain more information about us by surfing the Internet to find out what our habits might be as consumers on the Internet. That also undermines the our ability to have confidence in it as a vehicle for doing commerce and legitimate business. It is important that those people who behave in that activity would be punished for offences under this new act.

This bill would create laws based on the federal trade and commerce power. That is important, because it will provide an opt-in approach. So there will be existing business relationships that we have and there is a timeframe for the sign-up.

One of the things that the bill would provide is windows of opportunity for businesses with current existing relationships to make that connection with their customers. One of them is for 18 months in terms of a previous existing business relationship. The Bloc moved a motion to extend it to 24 months, which I opposed. I believe that 18 months is plenty of time for someone to get information from us. It is a long time period, being over a year and a half, but now it is two years and I think that is unfortunate.

However, once we have this law in place, there will be a process for those to be punished who are actually doing it. The way it will need to be done is through three regulatory agencies. The first is the CRTC, which will be involved in terms of investigating complaints.

We then have the Competition Bureau which will be responsible for the administrative monetary penalties, if there is an actual breach that has been confirmed by the CRTC. The fines can be up to $1 million for individuals and $10 million in all other cases. So there will be a recourse to show to those spamming powers out there that are doing this that there will be punishments, that it will be more than just a fine, that it will be significant for them to deal with and, hopefully, it will curb that behaviour.

The Privacy Commissioner will also be involved because sometimes our privacy rights are affected by spam. There have been a number of cases where spammers have used headliners that look like many banks' headliners and then, for example, people click thinking it is their own bank, but it turns out that it is a spammer collecting data and information from them. Sometimes that can be quite perilous. There have been cases where people have lost money thinking it was their own financial institution or a legitimate financial institution and they have provided access to some of their monetary resources. Unfortunately, that is why the Privacy Commissioner needs to be involved because it also will protect our personal privacy. A lot of people are concerned about that.

I think one of the reasons the bill will be strong is it would have those three regulatory agencies actively involved in maintaining the accountability of the actual bill.

Interestingly enough, there was a bit of a debate about whether this bill should deal with the telephone solicitation issue. It does not but at the same time it would give the minister a bit more ability to work on the do-not-call list. I hope the minister takes this up to fix some of the do-not-call list problems. One of the ones that is in there that this bill would prohibit is the issue of surveys. The government almost capitulated on this. I would like to thank those in the industry, Michael Geist and a number of other different individuals, who pointed out this giant loophole that we could drive a truck through, whereas if someone proposed or sent a survey to somebody it did not count as solicitation or spam and, hence, it would have actually avoided the whole regime. The government, at one point, looked like it had actually tabled an amendment on this but it ended up not tabling it. It backed down from that amendment.

Ironically, the Liberal Party picked it up and actually tried to move it but it was defeated when the chair overruled that. We were lucky that we did not have that. The one thing I hope will be cleaned up with the do-not-call list is the survey loophole that everybody knows about and which is hindering the capability of the bill. We did not actually have a section on that, so that gives the minister some flexibility to fix it and I hope that he takes me up on that suggestion.

It is also important to note that there was another issue in the bill that was defeated. It is important to recognize that because it is an issue that people are concerned about. In the original manifestations of the bill there was a provision that would have allowed companies to go onto our computers and seek information from that computer. If we had agreed to them being part of our Internet relationship, we would be consenting or allowing them to go onto our computer and access information and documents, and basically surf through our computer unknown to us.

That issue was taken off the table as well. There was great Internet discussion and blogging about this offensive piece of the legislation. I was happy to see that backed out as well. It is important because had that provision been there as well as the other provisions I have mentioned that were taken out, I do not know whether I could have supported this legislation because it would have weakened it so much. It would have become far weaker than even the do not call registry. It is very fortunate that we were able to get consensus and push that back.

As well, there were a couple of amendments that were interesting and I was rather curious as to how they came forward. We will see whether or not in the Senate they will be pushed forward again. One of them came from the Bloc and that was the extension of the time to actually opt out of an email subscription. The way it works is if I, for example, agree to receive an email and I have a relationship with a company or if someone is sending me that information, then I can opt out of that later on, by just sending an email that I do not want to continue this relationship. The way the legislation was written I would be taken off the list in 10 days. The Bloc moved a motion for it to be 30 days. The final part of the bill is 10 business days.

If we agree to an email through our bank or somewhere else, they will instantly start spamming or sending information. Once we agree, they start flying in. I have Aeroplan points, for example, from Air Canada and boy, that thing rings all the time with all kinds of stuff. I have agreed to that relationship and sometimes it is helpful, sometimes it is irritating, but I make that choice. To suggest that I want out of that and that it would take 30 days to get out of that is absolute nonsense, especially with the sophistication of some of the programs. Ten business days is a sufficient time to end that relationship. It is not burdensome at all especially when they have the capability of adding us in instantaneously when we agree to get on these lists.

I was puzzled about this and when it gets to the Senate we will see whether or not there is going to be another lobby effort either to kill the bill or to weaken it some more. If it is weakened even more, Canadians will be upset because they are seeking a solution to this. As well, it is important to reinforce the issues of how serious spam is. Spam is used in crime. Spam is also used in an organized way that affects the whole Internet capacity of the system. We just have to look at some of the botnets. These are zombie computers where specific programs are written to go in and then turn our computers into a generator off spam or email spam for someone else who controls a whole grid of them.

I am going to wrap up by saying that I will be supporting the bill. We want to see this happen as soon as possible. I am glad it has finally come to this chamber. I was disappointed it took so long because we worked really hard at committee to get it here faster. I am concerned it will have some impact in the Senate. We will see whether the senators are going to stand hard on the bill and make it happen quickly for Canadians to ensure we get some real results.

Electronic Commerce Protection ActGovernment Orders

November 30th, 2009 / 4:40 p.m.
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NDP

Bill Siksay NDP Burnaby—Douglas, BC

Mr. Speaker, toward the end of my colleague's speech in this debate on Bill C-27 he was getting to the whole discussion of how spam is used in crime. That is a very important piece of what we need to be addressing with legislation.

We have all experienced the concerns and panics about computer viruses. We have heard the words Trojan horses and other malicious attempts to interfere with people's computers and corporate computers. We know it is sometimes directed toward identify theft and other types of fraud. There are other issues that come up. The member was talking about zombie computers, where off-site computers can try to take over other people's computers, and the whole question of phishing.

I wonder if the member might address a little more about how the bill tries to take on the whole issue of how spam connects with criminal activity.

Electronic Commerce Protection ActGovernment Orders

November 30th, 2009 / 4:45 p.m.
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NDP

Brian Masse NDP Windsor West, ON

Mr. Speaker, one of the interesting results of the American legislation that was passed was the conviction of Robert Alan Soloway, who was arrested in the United States. He was one of the world's largest spammers.

The member is quite right when he refers to the issue and its connection to crime. It was not only identity theft and fraud, but money laundering was also part of the 35 criminal counts he was charged with. I am not exactly sure where it is. I think it was 2007 when he was arrested and some of the cases may be going through the courts. Those were the types of things with which he was charged.

That is important because it is not only about privacy but whether people's money can be taken. Government information and a great deal of personal information can be stolen and used for other types of illegal activity. The issue is related to money laundering. That can make it very harmful to citizens but also companies.

I want to touch on companies, too, because some of the market they invest in gets lost or hurt because of spamming. Some of the spamming is very particular, very clean in imaging, and induces people to think it is something it is not, such as, for example, the banking industry. It costs that industry because it loses customers. People then do not want to trust that company because others have abused it. That is why we do not want to lose sight of the criminal aspect of this as well.

Electronic Commerce Protection ActGovernment Orders

November 30th, 2009 / 4:45 p.m.
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Liberal

Paul Szabo Liberal Mississauga South, ON

Mr. Speaker, I had the opportunity to speak to this bill earlier and there was one issue I dealt with that maybe the member would like to comment on. It has to do with directing some of the attention on the ways in which small- and medium-sized businesses themselves can help to protect their own information by having best practices, et cetera.

I would refer him to the Canadian Privacy and Data Security Toolkit for Small- and Medium-Sized Enterprises, which was produced by the Canadian Institute for Chartered Accountants and issued at the beginning of last summer. There are, in fact, audit checklists in there for businesses because if they are not part of the solution, they are part of the problem.

With regard to this bill, it is one thing to look at the problem and how we might deal with those who abuse the situation, but businesses themselves have to be proactive in protecting their own information. I wonder if the member would like to comment on the need for businesses to be part of the solution.

Electronic Commerce Protection ActGovernment Orders

November 30th, 2009 / 4:45 p.m.
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NDP

Brian Masse NDP Windsor West, ON

Mr. Speaker, this issue really needs to be taken seriously. This is a privilege, not a right, especially given that businesses and people have invested in their own computers. They are the ones paying for the maintenance, as I noted. They are also paying for the Internet service being provided.

It is very much a privilege, not a right, to interchange in such a relationship. Otherwise, what should happen is that maybe consumers should get 5¢ for every ad or some type of remuneration for doing it. That really should be what is happening if this type of behaviour is seen as a right, not a privilege.

I would argue that there are some really good models, as the member has noted. Organizations are trying to create some best practices, so that they can keep their areas lined up correctly. With the three government agencies, the CRTC, the Competition Bureau and the Privacy Commissioner, there will be a really good, strong regime to set some good examples right away rather than those that are terribly abusive. That will hopefully bring in line those who are kind of on the fringes of doing this activity.

Electronic Commerce Protection ActGovernment Orders

November 30th, 2009 / 4:50 p.m.
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NDP

Jim Maloway NDP Elmwood—Transcona, MB

Mr. Speaker, my question is a bit of a follow-up from the question by the member for Mississauga South, but it has to do with the whole role of businesses. Businesses have privacy officers now, and I am talking about little businesses here. A lot of them will not even know that the legislation has passed the Senate, even when it does pass the Senate.

The question I have is whether the member thought that the government should have a roll-out plan to let small businesses know about the bill and its regulations. Perhaps that would go a long way to avoiding all of the problems that will come up as a result of the bill in terms of non-compliance and perhaps people doing things inadvertently that they would not have done if they had known what the rules are.

Electronic Commerce Protection ActGovernment Orders

November 30th, 2009 / 4:50 p.m.
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NDP

Brian Masse NDP Windsor West, ON

Mr. Speaker, there have been a couple of good examples in the past. But when I think about what will happen right now, if we are lucky, the bill will go to the Senate and be passed some time in 2010. I am hopeful there will be no election and the bill will become law.

I was watching a video today about some of the crime bills that were lost when the Prime Minister called the election, despite elections being set for ourselves in the future. We hope we will not see that happen again.

Businesses will have an additional two years before it comes into full implementation, when they will have that existing business relationship that can be struck with their current client base.

I am hoping the government does roll out a program right away at the beginning so that we can get to those businesses, not wait till the last minute and then have those types of problems.

There will be flexibility with the CRTC and the Competition Bureau to determine if there are accidental breaches or whether there are habitual problems that are happening in particular companies. There are all kinds of wonderful ways that we can connect electronically, with the Government of Canada's own infrastructure system, and as well, even connecting into, for example, the chambers of commerce across this country.

There will be a lot of opportunity to engage the public with a two year period before full implementation. So we are really not looking at it immediately. It depends when it gets through the Senate. It might be 2012 or 2013 before the law would be fully implemented and protecting consumers and the Canadian economy, and that is a long time.

Electronic Commerce Protection ActGovernment Orders

November 30th, 2009 / 4:50 p.m.
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NDP

Jim Maloway NDP Elmwood—Transcona, MB

Mr. Speaker, my brief supplementary question is whether or not the member is satisfied with the penalties under the act. I notice that there is a right to private action. I would have liked to have seen some sort of examination of the possibility of class action because there are class action provinces in Canada. If the government does not enforce the act to its fullest, does the member think that the right of private action will actually step in as the tough enforcement mechanism?

Electronic Commerce Protection ActGovernment Orders

November 30th, 2009 / 4:50 p.m.
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NDP

Brian Masse NDP Windsor West, ON

I think it will, Mr. Speaker, but the member raises a really good point with regard to class action. That is one of the things on which we could probably have spent more time to see whether that could have evolved into part of the final structure of the bill.

We did not have much discussion on that at all, but it might be one of those things that we could look to add to the bill. I am hopeful that perhaps that would be a strengthening of the bill and that it could happen at the Senate. If not, I am hopeful that the bill stays in its current format, at least as a starting point, and then from there we could look at massaging the bill if it is not meeting the needs.

Once again, this is critical. This is not just about inconveniences and annoyances. This is a massive use of technology and the abuse that is taking place with customers. It affects the Canadian economy and it is also giving Canada a black eye right now.

Electronic Commerce Protection ActGovernment Orders

November 30th, 2009 / 4:50 p.m.
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Liberal

Siobhan Coady Liberal St. John's South—Mount Pearl, NL

Mr. Speaker, I am pleased to rise today to speak to Bill C-27, the electronic commerce protection act. This legislation enacts important restrictions to the volume and frequency of spam in business transactions. I was pleased to have the opportunity to work with other members of the industry, science and technology committee to review this legislation and respond to some of the concerns brought forward by stakeholders.

Spam, or in essence, unwanted commercial emails, is a significant problem for Canadians. Spam currently represents 60% to 80% of all email traffic around the world. The sheer volume of messages challenges the capacity of Internet service providers and legitimate businesses that conduct their activities over the Internet and by email. Most important, it has a significant negative impact on consumers. Spam is a large source of computer viruses, phishing programs designed for identity theft, deception and fraudulent business practices that target the vulnerable.

A 2003 report estimated that fighting spam cost businesses and consumers $27 billion annually in information technology spending, including increased expenditure in Internet bandwidth, storage costs, anti-spam software and user support. In May 2004 the Liberal government established a task force to lead the anti-spam action plan for Canada. The task force held public consultations and led round tables with key stakeholders in the industry.

In 2005 this anti-spam task force tabled its final report outlining 22 major recommendations, including a key recommendation to strengthen federal legislation in this area. Specifically, the task force recommended that Canada implement legislation that would prohibit the sending of spam without the prior consent of recipients, prohibit the use of false or misleading statements that would disguise the origins or true intent of the email, prohibit the installation of unauthorized programs and prohibit the unauthorized collection of personal information or email addresses.

Bill C-27 looks to implement those recommendations. The electronic commerce protection act would introduce fines for violations up to a maximum of $1 million for individuals and $10 million for businesses. It would establish rules governing warrants for information during investigation and injunctions on spam activity while investigations are ongoing.

Bill C-27 would also establish the private right of action, allowing individuals and businesses the ability to seek damages from the perpetrators of spam. It looks to prohibit the sending of commercial electronic messages or, in other words, spam email without the prior consent of recipients. The bill also looks to prohibit the use of false or misleading statements that disguise the origins and true intent of the email, the installation of unauthorized programs and the unauthorized collection of personal information or email addresses.

Bill C-27 would introduce legislation to enact all of these recommendations. We are pleased that the Conservative government has finally decided to act on the recommendations of our task force.

However, upon more detailed review of the provisions included in Bill C-27 at committee stage, there were flaws exposed in the bill and several changes were made that looked to improve and ensure that the productivity of businesses activities dependent on electronic commerce would not be impacted.

While the Liberal Party believes the bill remains unnecessarily restrictive to legitimate business in its approach in many regards, we will support the bill at third reading as action must be taken against spam. We will monitor the legislation closely going forward to ensure that it does not stifle legitimate electronic commerce in Canada.

However, the Liberal Party further notes that the fight against spam is much more than just legislation. The Liberal task force also recommended resources to be put toward coordinated enforcement of the law. As it stands, this legislation will only go as far as the willingness to enforce the law. Without additional resources toward enforcement and toward working with other nations to stamp out spam, the gains intended through this legislation will not be made.

We have yet to see how the government will put appropriate resources into enforcement. Dedicated resources should be put in place to work with Internet service providers and Canadian businesses to establish the best methods of enforcing these important regulations.

As I mentioned previously, through close review and testimony provided by witnesses at committee stage, flaws were discovered within the bill. Specifically clause 6 was found to have been written too broadly and could have suppressed legitimate business communications over the Internet. Clause 8 also defined “computer program” very broadly and could have suppressed legitimate businesses, software development and impeded legitimate Internet functions.

After considerable work, many amendments were made to improve the bill, refining measures for electronic messages, computer programs and the protection of privacy rights.

The bill, however, retains a very strict philosophy. Bill C-27 takes a very broad approach to defining a rather wide definition of electronic messages that puts the onus on individual businesses to seek exemptions if they believe their activities to be legitimate.

The proposed Liberal approach was to define known spam irritants and define them as illegal, with the flexibility to add further definition as electronic messages on the Internet evolved.

The concern with the Conservative approach is that an overly heavy-handed approach could stifle electronic commerce in Canada and negatively impact the productivity of the business community.

Overall, however, many good changes were made to the bill at committee stage. As such, the Liberal Party will support the bill at third reading.

When it was first tabled, it appeared that while stakeholders supported the concept of the bill, they were quite concerned about the details of Bill C-27. Business groups, including the Canadian Chamber of Commerce, the Electronic Software Association, various interests in the technology sector all felt that Bill C-27 was too restrictive and could hamper legitimate commerce.

With significant amendments at committee stage, these stakeholder groups now feel the legislation has better balance. However, they maintain the legislation is still heavy-handed and could suppress legitimate electronic commerce activity. Many, however, have indicated that they will look to see further amendments as the bill passes through the Senate.

The following issues in no particular order of priority present the outstanding concerns heard during the review of this legislation, but were not amended under the clause-by-clause consideration of C-27.

First, in hearings before the committee, the Canadian Bankers Association raised concerns dealing with Bill C-27 and confidentiality. In its testimony to the industry, science and technology committee the Canadian Bankers Association recommended that the electronic commerce protection act be amended to specifically protect information produced under the act from disclosure by CRTC in respect to an access to information request.

The amendment proposed by the Liberal members was under clause 29 of Bill C-27. This amendment sufficiently addressed concerns that a document produced for and then kept by the CRTC would not be available to be made public under the Access to Information Act. It also served to specifically protect the information from disclosure by CRTC in response to access to information requests that could be important for proprietary reasons.

Our ability to make this change was limited by the need for a consequential amendment to the Access to Information Act, which we were unable to move as it fell outside the jurisdiction of Bill C-27.

The next issue the Liberal members of the committee felt important to bring to the attention of the committee under its review of the bill dealt with materiality. We believed it was important to retain the standard of materiality in respect to electronic sender information and subject matter information and brought amendments to clauses 71 and 73 to include the words “in a material respect”.

The main reasons for these amendments are as follows. The first is the chilling effect on individuals and businesses doing business. Without this change, concerns remain that individuals and companies doing business in Canada will automatically face potential criminal prosecution or civil action under the Competition Act every time someone asserts that the subject matter information in a business email is somewhat misleading, whether by understatement, by overstatement or otherwise or is in some other aspect false.

The addition of “in a material respect” is consistent with the language used in the Competition Act. Without this amendment, even trivial or immaterial misstatements or representations that are false or misleading will be subject to the serious consequences in the Competition Act.

The second effect could be felt in the Competition Bureau, including materiality, which would provide the Competition Bureau with the necessary discretion to brush aside complaints raised about purported misstatements that were trivial. Given the thousands of complaints made annually to the Competition Bureau, this change would allow the immaterial or trivial representations to be automatically filtered.

Third, materiality would impact double consequence. Due to an amendment brought in by government members to clause 51, the sender of a misleading email would be held accountable twice, once under the serious consequences in the Competition Act and again under penalties to Bill C-27, by heavy penalties for a misrepresentation that may not be material.

Unfortunately, the Liberal amendments to make these important changes concerning materiality were not supported by other members of the committee, so Bill C-27 retains these potentially problematic sections.

The next major area of concern dealt with referrals for legitimate professionals. We received interventions from several organizations concerning the need for certain professionals to make and follow up on third party referrals by email. Referrals are key to many professionals' success, for example, financial advisers and realtors to name a few, and initial changes brought forward by government for discussion at committee included changes allowing clients to pass along the electronic address of a contact, family member or friend to the professional.

The amendment originally proposed by the government does include a number of conditions that must be met, which we feel will prevent abuse.

First, the sender needs to be in an existing business relationship with the referrer. The referrer needs to have a personal or family relationship with the recipient. The sender has to name the referrer and the sender is limited to sending a single message to the recipient. Unfortunately, the government decided not to present this amendment at the clause-by-clause review of the bill and did not support the Liberal amendment to include these important exemptions in the legislation.

Another area of concern for stakeholders centred around the definition of a computer program. The Liberal members presented an amendment suggesting changes to the definition of a computer program. The goal of this amendment was to ensure that a computer code meant to be compiled by a web browser, such as Flash, JavaScript or HTML, along with popular web technologies such as Java code, Flash programs, et cetera, would no longer fall under the ambit of the anti-spyware provisions.

The most effective way to exclude legitimate website codes from the anti-spyware provisions seems to be to propose a comprehensive definition, which is subject to amendment by regulation to ensure it is kept current against new and emerging online threats. The amendment proposed by the Liberal members of the committee was defeated and officials pointed to the changes made to clauses 8 and 10 of the bill to address some issues dealing with consent around computer software.

Finally, concerns surrounding the communication between regulators of self-regulated professions and their members under the electronic commerce protection bill were raised during the committee review, and Liberal members brought forth an amendment to address this issue.

As currently drafted, Bill C-27 prevents professional regulators from sending legitimate communications to their members for innocuous purposes, such as continuing legal education opportunities. In many cases, these regulatory groups are required by statute to make members aware of such opportunities.

This could be a simple oversight and could be remedied by introducing an amendment to provide an explicit exemption for self-regulated professions under clause 6. This amendment was initially contained in the draft changes brought forward by government officials for discussion at the early October meeting of the committee, but was not brought forward as an amendment by the government during the clause-by-clause review of the bill. A Liberal motion on this issue was presented at a later date, but was ruled out of order, so this oversight remains an unfortunate component of Bill C-27.

While there remains room for improvement to the bill, the Liberal Party will support the electronic commerce protection bill at third reading in the interests of taking necessary action against spam in Canada.

The concerns that I and my Liberal colleagues have articulated throughout our study of this legislation will hopefully be given some thought by the government for inclusion within regulations. The Liberal Party would have approached this bill from a different philosophy than the government has, but we also recognize it is important for the bill to move forward for the sake of Canadians. It is important that we continue to monitor technological advances throughout the progress and implementation of this legislation and any changes that are enacted to increase the productivity of Canadian business.

Electronic Commerce Protection ActGovernment Orders

November 30th, 2009 / 5:10 p.m.
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NDP

Jim Maloway NDP Elmwood—Transcona, MB

Mr. Speaker, what sort of advertising program does the member think the government should embark upon if we ever get to the point that this legislation passes? It has to go through the Senate. We have to avoid an election or else we will be back here discussing the same thing a year or two from now. If we do get to the point where the Senate approves the bill, what does the member think the government should do in terms of advertising to the public, advertising to small business and trying to make certain the bill actually has teeth and proper enforcement?

Electronic Commerce Protection ActGovernment Orders

November 30th, 2009 / 5:10 p.m.
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Liberal

Siobhan Coady Liberal St. John's South—Mount Pearl, NL

Mr. Speaker, we look forward to the bill moving forward. It is intended to deter spam and protect the integrity of data transmission. We would like the bill to move forward rather expeditiously. We must ensure that legitimate business is not hampered in any way. We are a society that does a lot of commerce over the Internet.

I would ask the government to embark upon discussions with the Canadian Chamber of Commerce and the networks of chambers of commerce and boards of trade and other industry associations to widely spread the information about the provisions of the bill so that it can be implemented as quickly as possible.

Electronic Commerce Protection ActGovernment Orders

November 30th, 2009 / 5:10 p.m.
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Liberal

Paul Szabo Liberal Mississauga South, ON

Mr. Speaker, I want to thank the member for St. John's South—Mount Pearl for an excellent overview of the bill and more explicitly some of the insights. It is easy to come here and talk about all the nice things the bill does, but the member raised a number of issues that the bill does not address. That is extremely important. I want to take this opportunity to thank her for thinking about the rest of us who have other responsibilities.

She raised a specific issue with regard to disclosures required for the CRTC. The hope was that they would be exempted from access to information legislation, but that provision could not be put into the bill. It does raise the point that when there are unintended consequences, a mechanism is needed.

Would the member undertake to ask the committee if it would consider writing a letter to the Minister of Justice who is responsible for the Access to Information Act to consider such an amendment to the act and failing that, to write a letter to the Standing Committee on Access to Information, Privacy and Ethics bringing the matter to the attention of the committee so that the committee may consider such an amendment?

Electronic Commerce Protection ActGovernment Orders

November 30th, 2009 / 5:10 p.m.
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Liberal

Siobhan Coady Liberal St. John's South—Mount Pearl, NL

Mr. Speaker, when we spoke of this in committee the response from officials was that there was sufficient coverage under the protections of the Privacy Act. They felt this was sufficient to cover the concerns we were raising. The Canadian Bankers Association raised the issue and thought that some of the provisions under the Telecommunications Act would have given better protection. I thank my hon. colleague for his suggestion and will certainly take that under advisement as to how we could best move forward to ensure that those provisions are in place.

Electronic Commerce Protection ActGovernment Orders

November 30th, 2009 / 5:10 p.m.
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NDP

Jack Harris NDP St. John's East, NL

Mr. Speaker, this bill is somewhat complex and it would prohibit a fair amount of activity. Its purpose as set out in clause 3 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 certain activities that impose additional costs on businesses and consumers.

After prohibiting the sending of electronic messages unless there has been consent, expressed or implied, and prohibiting all sorts of activities, an exclusion is made for an electronic message that is sent by means of a facsimile to a telephone account.

I do not know if the hon. member is familiar with people re-sending advertising by facsimile to another individual's fax machine using the individual's paper, ink, toner and supplies. To send an electronic message all the sender does is press a button and that message can be sent to 1,000, 2,000 or 3,000 people. That would seem to cause an additional burden on people who do not necessarily want to get 500 ads for a $250 trip to Florida or wherever, and other impossible ideas that are being put forward. I see them all the time and I am sure the hon. member and others have seen them as well.

I wonder if the member could comment on that and why that might not be prohibited in this legislation as well.