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

May 7th, 2009 / 1:40 p.m.
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NDP

Charlie Angus NDP Timmins—James Bay, ON

Madam Speaker, I am very interested in the move to bring in an anti-spam bill. I think it affects every element of the competitive digital world in which we live.

Buried within the bill the government has given itself the powers to strip the provisions of the do-not-call registry, with which we have had many problems, and that concerns me.

My question is two-fold.

First, why do the Conservatives not just come out and say that they are going to strip the do-not-call registry as opposed to burying it within a bill?

Second, it appears it is being replaced on the presumption that the telemarketers would need prior consent to call in now, so that would somehow replace it. Yet when we look at the enforcement mechanisms of the do-not-call registry, they get 20,000 complaints a month, and over the entire time, the CRTC has only ever sent out 70 warning letters.

I do not know how the Conservatives expect to deal with spam and the problems with the do-not-call registry, when clearly the CRTC does not have the resources to address it. Would my hon. colleague please explain why they decided to kill the do-not-call registry, while putting it within the bill on anti-spam?

Electronic Commerce Protection ActGovernment Orders

May 7th, 2009 / 1:40 p.m.
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Conservative

Mike Lake Conservative Edmonton—Mill Woods—Beaumont, AB

Madam Speaker, I will start by correcting the hon. member. The bill clearly does not abolish the do-not-call registry. In dealing with the issue at hand, one of the important points to be made is we have had the real opportunity to benefit, in the drafting of the bill, from the study of best practices around the world.

In dealing with the substance of the bill, I will talk a little on a personal experience. A lot of people think spam is nothing more than a nuisance. Previous to my being elected in 2006, I worked for the Edmonton Oilers Hockey Club. At one point I was the director of ticket sales and as such, I had my email address on the website for the Oilers. At some point someone harvested that email address and sold it to spammers and I began to get completely inundated by spam. It was so bad it eventually got to the point where I had to change my email address. Members can imagine what goes in to changing an email address. It meant changing business cards. It meant the people who had my email address could no longer reach me.

This happened to several people within the organization. It meant we had to hire additional IT staff or put our IT resources to combat this through measures to block spam. Significant resources had to be allocated to that problem. It is estimated that the cost of problem is $3 billion to the Canadian economy per year.

If we multiply the effects I experienced and the efforts we had to take for the Oilers with thousands and thousands of companies across the country, including many small businesses that do not have IT professionals, the cost is significant.

I look forward to the member's support.

Electronic Commerce Protection ActGovernment Orders

May 7th, 2009 / 1:45 p.m.
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Liberal

Dan McTeague Liberal Pickering—Scarborough East, ON

Madam Speaker, when I first introduced legislation back in 2003, I was the first member of Parliament to do so and the first member of Parliament from a Liberal party that took this issue very seriously.

I am glad to see my hon. colleague, the Parliamentary Secretary to the Minister of Industry, has joined with us after many years of effort. It was a very tough thing over the years to try and manage 15 or 16 different files. I am very pleased to say that I know the parliamentary secretary is doing due diligence on that committee, a committee on which I am very proud of having worked over the years. Many of the issues that we raised many years ago are now starting to bear fruit.

I am happy to see the government is finally taking action on spam, what all of us will know is unsolicited electronic mail. Many of us who have computers, all know how dangerous and how much of a problem this is for both Canadian consumers and businesses.

In 2003 it was estimated that spam cost the economy over $27 billion worldwide. Since then, the problem has only grown worse. I am sure there is more updated information which the parliamentary secretary and others may be able to illustrate. However, to say the least, we are now looking at a far more serious problem, which hopefully will be corrected by the bill, as it relates to issues such as identity theft, phishing and spyware, all of which give concern to Canadians and to the world. We have to deal with this in legislation both locally and internationally.

In the early 2000s, the Liberal Party recognized the problem that spam created. In 2003 I tabled a private member's bill to make spam illegal. Unfortunately, the bill never made it to second reading. However, on the strength of Bill C-460, introduced in mid-2003 in the 37th Parliament, the minister of industry struck a committee to examine the issue of spam and to report to the minister about how the government could most effectively stop this obvious and serious, growing problem.

That report entitled “Stopping Spam: Creating a Stronger, Safer Internet” was released in May of 2005. The report was created by a committee of 10 experts on information technology and Internet law. The task force also worked with dozens of stakeholders in the technology industry to develop sound proposals and to look at and observe best practices at the time.

The primary recommendations of the task force were that the government legislate prohibitions on the following: the sending of unsolicited email; the use of false or misleading statements that disguise the origin and the true intent of the email; the installing of unauthorized programs such as spyware; and the unauthorized collection of personal information and email addresses, particularly by using fake websites, through the selling of lists where those on the list were not told the list would be sold to another third, unknown party.

The official opposition supports the bill as it follows through on the recommendations of the committee, which was created by the Liberal government. However, much more remains ahead of us and much more needs to be done.

The committee highlighted the need for the government to play a central role in coordinating the actions of both government and the private sector. All actors agree that spam needs to be stopped. Internet service providers, web hosts and online marketing agencies need a set of best practices for email solicitation. The government must work, in coordination with industry partners, to establish a strong code of practice that prevents the proliferation of electronic emails that are unsolicited, unwanted and constitute spam.

These days spam is no longer a problem exclusive to email. In 2004 and 2005, when the committee was writing the report, spam was starting to move to other electronic platforms. Today Canadians must contend with cellphone spam, either by means of text message or by something we may not all be familiar with, robo calling.

It is important that the act recognize the facts and is technologically neutral, encompassing all forms of commercial electronic communication. I believe the legislation must meet that test to ensure there is proper, effective and adaptable application to current, existing and future modalities that may be able to circumvent not only technologies to prevent and to protect consumers in business, but also to remain faithful to the act.

This is why I hope the act can be revisited on a yearly basis as technology evolves. It is something the Liberal Party will look to see the government amend or to look at in committee.

Moreover, the issue of text message spam is being aggravated obviously by yet another announcement of a major cellular service provider over the last year to start charging for received text messages.

There has been plenty of discussion among members of Parliament. It is obvious to everyone that it is unfair, to say the least, that consumers are charged for something they had no choice whatsoever in receiving. Spam is not just a Canadian problem, as I indicated earlier. Given the borderless nature of the Internet, it means that spam can originate from anywhere and be delivered to anywhere.

I strongly point out that the legislation takes measures within Canada. There has to be, obviously, an attempt to work internationally with our other partners so that we can also go after those companies and those organizations that are doing this remotely from other countries that do not have the same level of proposed enforcement or legislation. As a result, because of the international nature of this problem, any government that is serious about combatting spam must be willing to engage other governments around the world in an international strategy to reduce this ongoing problem.

The government's ability to combat spam is not simply about legislation. I am asking, and I am hoping, and my party calls on the government to show its concern by raising this internationally at all international fora and working with other governments to produce a coordinated international anti-spam and anti-counterfeit strategy. The effectiveness of this law will be measured by the government's commitment to enforcement.

I take the comments that have already been raised in the parliamentary secretary's presentation of Bill C-27, that we have to ensure there is adequate support for enforcement of the legislation, which is being complimented and certainly being recommended here.

That is tall order. There is no point in putting forth legislation if there is a reasonable chance that the legislation will not have the intended impact of deterring, stopping, correcting and preventing what is continuously more than just a nuisance, but a very costly one at that.

Of course, policing Internet traffic is incredibly difficult because any Internet crime crosses jurisdictions and borders, both provincial and federal. This is why the attempt to control or to stop spam in the report called on the government to create a central office that would coordinate anti-spam activities. I am looking at the parliamentary secretary, hoping that in fact he will move diligently on that if speedy passage is indeed given to this piece of legislation.

According to the minister, Industry Canada is being designated the official coordinating body. I would like to ask the government what kind of resources Industry Canada is being given to coordinate the three other agencies that the parliamentary secretary has referred to that have responsibilities under this act, those being the Privacy Commissioner, the CRTC and the Competition Bureau, as well as, of course, the RCMP.

What resources can we see coming from the government with respect to these offices so that we can in fact see spam corrected in this country?

I realize that question may come back to me, but it is certainly a question that I would think the government will have to answer time and again here to ensure that we have a correct and appropriate measure.

It is extremely important that, everywhere in Canada, we can have confidence in the legislation proposed by the government. I expect that the Standing Committee on Industry, Science and Technology will deal quickly with the issue before us. We have been waiting for a bill for six years. I had hoped that my bill in 2003 would be adopted. It was deserving; but that was not the case.

Central to this issue, if the government passes legislation and walks away from the issue, all these initiatives that are proposed, well-intended, well-researched and up-to-date, will indeed fall. I believe that legislation, to be correctly brought forward, must also ensure that we have proper resources and effective coordination so that it is understood how this is going to take place. The more rapid response we can have to correct this problem, I think, will ensure that those who see Canada as an opportunity, as a target, will find another place. But we also want to make sure that other place is blocked. We simply want to put an end, where possible, to these practices, which have as their origins and as their sense the undermining of the credibility and integrity of communicating and the effectiveness of legitimate use of the Internet, which belongs to us all.

I was here in 1993 and 1994 when the industry minister at the time, Mr. John Manley, talked about the great opportunities of the Internet as the superhighway, as we used to call it at the time, because it was the wonderful dawning of new age.

Unfortunately, that superhighway has become badly clogged, to the point where I think it is fair to say that there have been serious traffic jams, if not serious accidents, along the way. Therefore, this legislation is timely, it is necessary, and I hope it has a reasonable opportunity to in fact pass.

The government must follow up on the legislation with real action and real enforcement resources. It must actively engage all partners everywhere and industry internationally. It must continue the consultation process and develop longer term opportunities to combat spam. So I ask the government what plans it has, moving forward, to engage industry partners in building strong codes of this practice.

We will have to ensure that it is not just based on a blue-ribbon panel that was struck some years ago but that in fact we have an ongoing ability to ensure that partners, stakeholders and consumers, those who have been tremendously affected by this, will be able to benchmark and give us feedback as to how effective this legislation will be, particularly from the point of enforcement.

What plan does the government have to work with our international partners in building a strong international effort to combat spam? Spam can be incredibly destructive. Besides consuming time and bandwidth, spam is a delivery vehicle for malware, programs that access one's computer without authorization and can do a number of nasty things. Malware includes viruses and spyware, which attack the individual user. However, some of these programs turn the user's computer into a zombie on a botnet, which then can be used to attack major websites on the Internet.

This is something that we could not have contemplated three, four or five years ago, but it is currently taking place. Many consumers and many constituents have talked to me about this and have talked to other members of the House. We need to ensure that we have a pragmatic policy, a pragmatic document that is capable of changing with changing times as Internet and electronic information becomes more sophisticated.

All these attacks have serious economic impacts when websites like eBay or Google are brought down. Even for a few hours, billions of dollars are lost. Spyware can be used for identity theft, which is a constantly growing threat in the Internet age.

I do not need to say that even our own electronic system here in the House of Commons has been subjected to several attacks over the past several months. These have caused enormous difficulty for many of us as we communicate. I notice some members of Parliament sporting a BlackBerry, and others, a computer. It is important that we get the platform, or the framework, of this legislation correct.

I call upon all members to support the bill at second reading so it can go to committee. However, I have serious concerns about the will or the interest of the government in enforcing these rules and to work co-operatively with other stakeholders and with other governments.

Madam Speaker, I will end there but I am eager to hear the comments and questions of my colleagues.

Electronic Commerce Protection ActGovernment Orders

May 7th, 2009 / 3:05 p.m.
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Liberal

Dan McTeague Liberal Pickering—Scarborough East, ON

Mr. Speaker, I hope to be able to encapsulate some of the thoughts that I have before the House with respect to this important piece of legislation.

I was concerned not just about the international implications but that Canada must demonstrate a greater willingness to co-operate, to work collectively, and to find solutions that are certainly concurrent with new developments in technology, particularly those who are involved with spam, the illegal sending of electronic information, phishing and that sort of behaviour, including the use of malware. We must be able to ensure that we have at our disposal the availability of the best technologies, and that the best practices in consultation with the provinces, the international community and the federal government are brought to bear.

One of the concerns I also have is the economic damage that spam has created. Given my work on this file, going back to Bill C-460, back in October 2003, I have always been troubled with the penalty, not just the question of resources to ensure that we enforce but of course the penalty. The penalty is a significant, on paper, administrative monetary penalty.

I realize that this is the way we have gone in Canada, but the bigger concern is that the damage done to the industries or consumers is never fully and properly compensated. Sooner or later we are going to have to recognize that administrative, monetary penalties, while they may form a deterrent and while industries or consumers may in fact receive, ultimately, proper payment from those who have purveyed or who have been accused and charged, and ultimately convicted, the fact is that victims will continue in this context to remain victims.

I would hope the moneys that the federal government will be getting when it catches those who are involved with the use of illegal forms of electronic messaging are in fact moneys that could be used for better training, to be reinvested in ensuring that we have proper, best practices that can be advocated, that we can share with small and medium sized enterprises, and that we can help to educate in our schools. So we are not just saying, “Here is $1 million to stop the problem”, but once we seize those assets, once we get that kind of money, it should in fact be reinvested into the very resources, the very force, the very effectiveness of this legislation.

As I pointed out earlier, this bill has good intentions. However, if it cannot be vigorously implemented, it will not give the desired results. Therefore, my expectation is that the Standing Committee on Industry, Science and Technology and the other committees that may examine this issue should be prepared to take into consideration the evidence of witnesses in order to adopt the most important practices. We must reassure people that this bill will not just be a document but that it will also represent the demands of people who work very hard to combat this problem, which continues to be a veritable impediment for consumers and businesses.

With regard to spam, this issue understandably affects everyone, especially in a country such as ours where we use BlackBerries and receive messages from businesses.

I cannot emphasize how wrong it is for all of us to have cellphone companies actually charge people for spam that they neither asked for nor did they in fact encourage. So it seems to me it is attacks on a problem that Parliament has missed for years. I am hoping that we can actually address this issue and that we also reach out to cellphone companies, and stop this practice of billing Canadians for something that is no fault of their own. It is the result of negligence perhaps by Parliament over the years not to get a proper model together.

As it turns out, the legislation in terms of other jurisdictions may be behind the eight ball. We may have been a little slow in getting off, but nothing stops us from working with the various software companies and large computer companies to make sure that we avail ourselves of the best, the most modern, the most up-to-date best practices, and best abilities to detect those fraudsters who, in my view and I think the view of all parliamentarians, are engaging in a practice that undermines the integrity of one of the premium and most important forms of communication that we have in the modern age.

Since the time that I presented my bill and the time in which my party has been interested in this, we have gone through several ministers of industry. I am hoping and I challenge the current industry minister to put his rhetoric aside and to continue to focus on the importance of having this legislation passed. The importance of the legislation passed also means taking in necessary amendments as they become available. I have mentioned some that could be considered.

I look forward to questions and I also look forward to a speedy third reading debate to get this into the Senate, so that we can give Canadians a modicum of assurance that Canada is acting in a way that is not only consistent with the best practices around the world but we are acting in a way that ensures that above all we are protecting consumers in this country.

As a Liberal, I am proud of the fact that my party has taken this issue very seriously. We began the blue ribbon panel. I am seeing that several years later the Conservatives have finally realized how important a consumer issue this is. Be it as it may that it is late, I think we can stand together and ensure that this legislation, with some modification, should pass as soon as possible, assuming of course proper and appropriate parliamentary due diligence.

Electronic Commerce Protection ActGovernment Orders

May 7th, 2009 / 3:15 p.m.
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NDP

Jim Maloway NDP Elmwood—Transcona, MB

Mr. Speaker, I want to thank the member for an excellent presentation. I do recall hearing a lot from him over the last few years on consumer issues, particularly the high price of gasoline, when he has actually been ahead of his party on consumer issues. I really appreciate him doing that. He indicated he introduced the first bill in 2003 and certainly had his battles with his own government at the time because he could not get it to move. But I applaud him for sticking with his principles and sticking to the issues by taking positions that were not always consistent with his government at the time.

He indicated the way the bill is structured and set up by the government. He also talked about the poor resources that Industry Canada may have and the problems it has with coordination. Does he have any suggestions for amendments that would make this a much tougher, easier and forceful bill?

Electronic Commerce Protection ActGovernment Orders

May 7th, 2009 / 3:15 p.m.
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Liberal

Dan McTeague Liberal Pickering—Scarborough East, ON

Mr. Speaker, as new as the hon. member may be to this Parliament, he is certainly a quick study on a number of consumer issues and I have noticed that from a number of other members. This grey hair is now starting to show the amount of time I have spent on some of these issues.

It is critical that if we are going to properly resource enforcement in this country, particularly as it relates to the CRTC and to the Competition Bureau, that the money the government acquires under administrative monetary penalties be added to the resources which the government contemplates thereby ensuring that we stamp out spam to the extent that we can.

In fact, I am asking the government to not use these monies prior to making a commitment to vigorously strengthen the bill. I am proposing that it provide more money.

This is the least we can do because if we are not going to actually compensate the victims who have been badly hurt by the wanton attempts by spammers, as is done in many other jurisdictions including the United States, my view is that the money at the very least should be given back to better resources, to acquire the best modalities, so that we can continue to be one step ahead of this.

I know that in my neighbourhood, in Pickering, there are hundreds of people I have spoken to in the past two or three years whose computers have been completely destroyed by this, costing them several hundreds of dollars. They do not ask for money. They just ask that the federal government stand up, stamp out this problem, and stop using Canada as a sieve to export the problem externally, which is something that Parliament has to consider. It is not just saying we are going to stop it here in Canada. We have to recognize once and for all that spammers in Canada are doing this nation a disservice and creating a black eye for our country as they export this problem to other countries as well.

Electronic Commerce Protection ActGovernment Orders

May 7th, 2009 / 3:15 p.m.
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Bloc

Robert Bouchard Bloc Chicoutimi—Le Fjord, QC

Mr. Speaker, it is always a privilege to rise in the House, especially on a matter that affects the vast majority of people.

I am referring to Bill C-27, whose purpose is to promote the efficiency and adaptability of the Canadian economy by regulating certain fraudulent commercial practices that use email. To do this, the bill would amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act and the Personal Information Protection Act.

With all the modern means of communication at our disposal, we are constantly being solicited. This bill seems at first glance, therefore, to be a good idea. When the House of Commons passed the Telemarketing Act in 2006, a national do not call list was established to reduce telephone solicitation. People who so desire can now put their telephone number on the list, which greatly reduces telephone solicitation.

I say “reduces” because there are still regulations that allow solicitation, although the new act clearly stipulates that if a person asks not to be called any more, the company must immediately stop contacting him. In addition, companies or individuals who want to have the right to contact people must be registered on the list.

Under the act, any person or organization that is not registered or fails to comply with the regulations under the act is liable to a maximum fine of $1,500 for an individual or $15,000 for a corporation.

Initial results show that the list created in September 2008 seems to have had a major effect on solicitation.

There is a simple connection I wanted to draw with the telephone do not call list. All email users are very familiar with spam, that is to say, email sent to sell us products and offer prices and many other annoying things.

In short, I do not know whether other members have noticed, but there seems to have been a considerable increase in the amount of spam over the last few months. It makes me wonder whether companies have not just changed the way they contact consumers.

I do not know specifically whether this Bill C-27 to protect electronic commerce will have the same effect as the telephone do not call list, but it goes without saying that the vast majority of email users I know would greatly appreciate an initiative of this kind.

Bill C-27 has a number of objectives. Its main purpose is to prohibit the sending of commercial electronic messages without the prior consent of the recipient.

Another objective is to protect the integrity of data transmissions by prohibiting other practices related to the unauthorized installation of computer programs. It seems only natural we would want to avoid the use of consumers’ personal information to send spam.

Bill C-27 would therefore prohibit the collection of personal information by means of unauthorized access to computer systems and the unauthorized compiling and distribution of lists of electronic addresses.

It is hard to be against motherhood and apple pie, and we in the Bloc Québécois think that companies that want to email consumers should obtain their consent first.

This bill has some fine objectives therefore. How the act will actually be enforced, though, appears rather complicated. It seems to me upon reading it that three agencies will be involved.

The CRTC must take the necessary steps to take action against the sending of unsolicited commercial electronic messages.

At the same time, the Competition Bureau must address misleading and deceptive practices and representations online, including fraudulent emails from financial institutions.

The Office of the Privacy Commissioner must also take measures against the collection of personal information via access to a computer and the unauthorized communication of lists of electronic addresses. Lastly, the Telecommunications Act will be amended by the provisions that provide the framework for this new dimension.

I know the government wants to tackle spam, and I agree that it should. Will this bill successfully prevent an American company, for instance, from sending information by email to electronic companies in Quebec and Canada? That is an important question.

I know that a number of countries have established measures like the ones proposed in Bill C-27, and they seem to be producing positive results. In Australia, the United States and Great Britain, the various pieces of legislation to combat spam seem to be making a real difference.

Those countries probably also have a mechanism to reduce the amount of spam coming from other countries.

At first glance, Bill C-27 deserves to be studied further in committee. Establishing measures that will help prevent as much spam as possible from being sent by people who use false representation, prohibited software or who exchange information about email addresses appears to be a good idea.

Of course, we would like to examine the bill's impact and application more carefully with witnesses. We are in favour of the principle of this bill, but we would like it to go to committee so we can hear from and consult with witnesses, and see if Bill C-27 would really meet needs. We would also like to know if it will properly address the spam that consumers are currently receiving.

The Bloc Québécois supports the principle of Bill C-27. It appears to respond to a problem. Unsolicited commercial electronic messages are becoming a serious social and economic problem that undermines the personal and commercial productivity of Quebeckers.

Spam is a real nuisance. It damages computers and networks, contributes to deceptive marketing scams, and invades people's privacy. Spam directly threatens the viability of the Internet as an effective means of communication. The Internet is supposed to be an effective means of communication but clogging it up with spam decreases its effectiveness. It undermines consumer confidence in legitimate e-businesses and hinders electronic transactions.

This is a constantly evolving problem, and the government has finally presented a bill four years after setting up a spam task force. That bill is C-27, the Electronic Commerce Protection Act.

Essentially, this Electronic Commerce Protection Act governs the sending of messages by email, text messaging or instant messaging without consent. Transmission of spam to an electronic mail account, telephone account or other similar account would be prohibited.

The only circumstances under which spam may be sent is when the person to whom the message is sent has consented to receiving it, whether the consent is express or implied.

Here are some of the other prohibitions: No person may alter the transmission data in an electronic message so that the message is delivered to another destination. Nor may they install a computer program on any other person’s computer system or cause an electronic message to be sent from that computer system without the owner's consent.

Bill C-27 suggests a number of administrative recourses, such as a fine of up to $1 million for an individual and $10 million in other cases. The CRTC would be responsible for investigating all complaints and must have the appropriate powers to do so.

Bill C-27 also proposes the provision of a private right of action that would enable companies and individuals to institute proceedings against any wrongdoer, which is similar to a law that has been passed in the U.S. .

Any organization covered by Bill C-27 may, on its own initiative, transmit to the CRTC, the Privacy Commissioner, or the Commissioner of Competition any information in its possession if it deems that information to be related to a violation of the Electronic Commerce Protection Act. These three bodies must also consult each other and may exchange any information in order to fulfill the responsibilities and activities they carry out under their respective statutes. Under certain conditions they may also provide such information to the government of a foreign state or an international organization.

Canada is not the only country to legislate the protection of electronic commerce. As mentioned earlier, other countries have adopted legislation in this regard. I heard one of my colleagues say that Canada is lagging behind in terms of introducing spam legislation.

I also looked at one country among others, France, which introduced a law called “law to support confidence in the digital economy“. This law was adopted in June 2004, and had a six-month transition period. Apart from specific rules set out in the postal and electronic communications code as well as the consumer code, France is required to ensure that solicitations by email, no matter their nature—business, charitable, political, religious, or membership, for example—are subject to personal information protection legislation.

Bill C-27 is not unique when we look at what other countries are doing. The Bloc Québécois is in favour of the principle of this bill. It meets several objectives that I mentioned earlier and that I would like to summarize. It will prohibit unsolicited emails from a business, protect the integrity of data transmitted by prohibiting practices related to the unauthorized installation of computer programs, prohibit the collection of personal information by accessing computers without the consent of the individuals involved and prohibit the unauthorized compiling or distribution of electronic address lists.

I will close my statement by repeating that the Bloc Québécois is in favour of the principle of Bill C-27, which seeks to assign responsibilities to three organizations we are familiar with and which will regulate email in order to have a much more efficient system of Internet communication.

The proposed legislation is interesting. We are prepared to support it, in principle, so that the bill can be studied in committee.

Electronic Commerce Protection ActGovernment Orders

May 7th, 2009 / 3:30 p.m.
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NDP

Niki Ashton NDP Churchill, MB

Madam Speaker, I would like to thank my colleague for his very detailed remarks on the matter before the House today.

Before I ask my question, I would like to say a little bit about myself. I am one of the youngest members here. I belong to a generation of people who use the Internet constantly, not just in our professional lives, but in our daily lives to stay in touch with friends through email or Facebook. Those of us who use a lot of online resources get a lot of spam and so forth that slow down our communications.

I believe that Canada is a leader in many respects, but this is one big exception. Canada is way behind the rest of the world. Worse still, Canada is part of the problem for the rest of the world because it does not have legislation that covers this and because many of those who send troublesome emails to us and to others are based in Canada.

I would like my colleague to comment on that and on the fact that Canada has not really shown leadership on this issue.

Electronic Commerce Protection ActGovernment Orders

May 7th, 2009 / 3:35 p.m.
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Bloc

Robert Bouchard Bloc Chicoutimi—Le Fjord, QC

Madam Speaker, I thank the member for her question.

As I said earlier, some countries have passed legislation to regulate, reduce and perhaps even eliminate spam. It has to be said that Canada is lagging behind a bit on this aspect of protecting electronic commerce.

I believe that this bill is a good initiative, even though it comes a bit late. At first glance, we support the bill in principle, but we think it should be referred to committee for study. That way, comprehensive consultations will be held to make sure that the bill better meets the needs of young people, as I said earlier, and all users.

We also have to recognize that electronic commerce is a very good thing in and of itself, but when it gets bogged down in spam, it becomes much less efficient.

Electronic Commerce Protection ActGovernment Orders

May 7th, 2009 / 3:35 p.m.
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NDP

Jim Maloway NDP Elmwood—Transcona, MB

Madam Speaker, I would like to commend the member for a very good presentation. I do have some concerns. They are not necessarily regarding the legislation, because we in our party do support the legislation. We think that it should have been brought in long ago because we are behind the curve in this area.

What we have here is a pro-business government. It is not really known for being a leader in consumer-type legislation. The issue becomes whether one trusts the government. We could have the fanciest, most comprehensive legislation in the world, but if the enforcement is not there, we really have not accomplished much.

I would like to know whether the member and his party have any ideas on how we can not only make the best legislation possible here in the House but also limit the possible loopholes the government might have for not giving it the full enforcement that it deserves.

Electronic Commerce Protection ActGovernment Orders

May 7th, 2009 / 3:35 p.m.
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Bloc

Robert Bouchard Bloc Chicoutimi—Le Fjord, QC

Madam Speaker, as I said earlier, the Bloc Québécois supports this bill. It is designed to protect electronic commerce, which is a good thing in and of itself. We also want the committee to hold consultations on the bill in order to make sure that it really meets people's needs.

At this point, we do not necessarily have any changes or proposals to make. We want to hear what businesses and the people concerned have to say about this bill.

We want the bill to benefit the public. We want the Internet to be an efficient system. Currently, because of the huge amount of spam people receive, the Internet has problems and is less efficient, when it should be more efficient. We want to make the Internet more efficient by combatting spam.

Electronic Commerce Protection ActGovernment Orders

May 7th, 2009 / 3:40 p.m.
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NDP

Jean Crowder NDP Nanaimo—Cowichan, BC

Madam Speaker, I am pleased to speak to Bill C-27, the electronic commerce protection act, on behalf of New Democrats. We will be supporting the bill, in principle, but we feel that it is important for it to go to committee for extensive review to ensure we get it right. I will be speaking a little later about some previous legislation where we did not get it right, and, in fact, the correction is buried in this bill.

I thank the member for Windsor West for the good work he has done on this file and look forward to more comments from him when it gets to committee.

I want to talk about some key elements of the bill, why it is needed, the cost of spam to business and citizens and some other details that are in the bill that are not directly related to electronic commerce protection.

When the government came forward with this bill it said that it was about protecting the privacy and personal security concerns associated with spam, counterfeit websites and spyware. It said that spam and related online threats were a real concern to all Internet users as they can lead to the theft of personal data, such as credit card information, which is identity theft; online fraud involving counterfeit websites, phishing; the collection of personal information through illicit access to computer systems, spyware; and false or misleading representations in the online marketplace.

The proposed legislation would also treat unsolicited text messages or cellphone spam as--

Electronic Commerce Protection ActGovernment Orders

May 7th, 2009 / 3:40 p.m.
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NDP

Jean Crowder NDP Nanaimo—Cowichan, BC

Madam Speaker, I have a couple of key points from the background information that was provided on the bill. It reads:

The bill also addresses the legislative recommendations of the Task Force on Spam, which brought together industry, consumers and academic experts to design a comprehensive package of measures to combat threats to the online economy.

The intention of the proposed legislation is to deter the most dangerous and damaging forms of spam from occurring in Canada and to help drive spammers out of Canada.

This bill proposes a private right of action, modelled on U.S. legislation, which would allow businesses and consumers to take civil action against anyone who violates the ECPA. The proposed ECPA's technology-neutral approach allows all forms of commercial electronic messages to be treated the same way. This means that the proposed bill would also address unsolicited text messages, or “cellphone spam”, as a form of “unsolicited commercial electronic message”.

The bill would establish a clear regulatory enforcement regime consistent with international best practices and a multi-faceted approach to enforcement that protects consumers and empowers the private sector to take action against spammers.

An important proponent of the proposed ECPA is the enforcement regime whereby the Canadian Radio-television and Telecommunications Commission (CRTC), the Competition Bureau and the Office of the Privacy Commissioner would be given the authority to share the information and evidence with their counterparts who enforce similar laws internationally....

It goes on to talk about the administrative monetary penalties of up to $1 million for individuals and $10 million in all other cases. It talks about the CRTC role and the role of the Privacy Commissioner.

I know that many of the people listening to this debate know what spam is but I want to give a definition because, like anything else, spam means one thing to one person and something else to another. Spam is identified as the abuse of electronic messaging systems, including most broadcast mediums' digital delivery systems, to send unsolicited bulk messages indiscriminately. While the most widely recognized form of spam is email spam, the term applies to similar abuses in other media instant messaging: news net news groups spam, web search engine spam, spam and blogs, wikispam, online classified ads spam, mobile phone messaging spam, Internet forum spam, junk fax transmissions and the file sharing network.

Spamming remains economically viable because advertisers have no operating costs beyond the management of their mailing lists, and it is difficult to hold centres accountable for their mass mailing. Because the barrier to entry is so low, spammers are numerous and the volume of unsolicited mail has become very high.

The costs, such as lost productivity and fraud, are borne by the public and by Internet service providers, which have been forced to add extra capacity to cope with the deluge. Spamming is widely reviled and has been the subject of legislation in many jurisdictions.

I want to talk briefly about the costs. There are certainly costs to business when we talk about the filters and all the mechanisms that they need to put in place in order to prevent spam from getting into their systems, whether it is their cell phone systems or their Internet or email systems.

There is also the cost to workers. Many times when we are talking about businesses in the House, we are often talking about productivity and efficiency. In some of the previous work I have done, when we talked to businesses about how to improve productivity and efficiency, we often looked at time management techniques. One of the statistics that came from looking at time management techniques was that every time people were interrupted at a task, it would take them seven minutes to get back to the level where they left off.

Every time workers have their systems infiltrated by spam, we see a direct impact on the productivity of that company. Even if workers set time aside to look at their email, when they are dealing with junk email, it prevents them from dealing with the other activities before them. We know it takes a significant amount of time to get back to the place they left off. Therefore, there is a direct impact on worker productivity.

Many of us in the House have experienced spam on what should be a fairly highly protected system. It is an annoyance, a cost factor and extremely disruptive.

Some citizens are more vulnerable to spam. Fraud is involved, both in terms of stealing identity and in terms of having vulnerable people being hooked into purchasing goods and services that they do not need and which are often not of the quality and substance one would expect.

Therefore, there is a very real cost to businesses, to consumers and to the average citizen.

The important thing to point out about this legislation is that Canada is the only G7 country without anti-spam legislation. We often like to tout ourselves as being a proactive and progressive country and here we are lagging seriously behind. In fact, Canada ranked fifth worldwide as a source of web-based email spam, trailing only Iran, Nigeria, Kenya and Israel. It is a pretty sad track record to say that we are one of the countries that is a haven for spammers. Our track record is so bad that we are considered almost lawless when it comes to preventing spam.

Part of what we know about this is that companies anxious to target Canadian-based spammers have been forced to turn to other countries to do the job because we do not have legislation. They actually need to go to international law enforcement agencies that look at criminal spam activities. However, they have difficult enforcing any legislation because the Canadian authorities lack the requisite investigatory powers.

Michael Geist said:

The fact that organizations are forced to use U.S. courts and laws to deal with Canadian spammers points to an inconvenient truth -- Canadian anti-spam laws are woefully inadequate and we are rapidly emerging as a haven for spammers eager to exploit the weak legal framework.

We can see that there is sufficient information out there to say that Canada needs to take action and it is long past due.

In an article from December 16, 2008, CBC News, it says:

Canadian computers — many of them unwittingly — send out over nine billion spam e-mails a day, almost five per cent of all global spam traffic, according to a report from network and internet security firm Cisco. In an annual security report...Cisco estimated almost 200 billion messages per day, or 90 per cent of all e-mails sent worldwide — can be defined as spam, double the volume of the previous year.

I talked earlier about the cost to business, the cost to workers and the cost to citizens. When we look at that volume, it is shocking. Again, Canada has known about this problem for many years and it is only now that we are getting legislation.

I want to talk briefly about some of the key components of the legislation. There are three primary prohibitions. This bill would require all senders to obtain express consent before sending commercial electronic messages, including email, instant messages and so on, and to include contact and unsubscribed information. It would also require provisions designed to counter phishing, spyware and botnets used to send spam.

Various sections deal with this but I want to deal with three requirements: the form, consent and jurisdiction. The law requires that the identification of the person sending the message, as well as on whose behalf it is sent is included, contact information of the sender, because I think many of us have ended up with messages that we have no idea who is behind the sending, and an unsubscribe mechanism. The unsubscribe mechanism must allow for an easy opt-out by email or hyperlink that remains valid for at least 60 days after the message is sent. The sender has 10 days to comply with the unsubscribe request, and currently we know that spammers use the unsubscribe button to actually send more spam. If this is truly enforced, this unsubscribe mechanism, it will actually cut off some of the junk email that we are currently getting.

I want to touch briefly on the enforcement provisions. What we know is that the enforcement provisions do not have any real teeth. We can put all the fines we want in the act, but if we do not have the resources and the tools to commit to enforcement, they are meaningless.

I want to briefly talk about the do-not-call list because some changes to that legislation are embedded in Bill C-27.

In an article by Geist, he says:

Government Quietly Lays Groundwork For Overhaul of Do-Not-Call List....

We know in this House that there have been some serious problems with the do-not-call list. When I talked earlier about the need to have this bill go to committee, what we want to do is ensure the bill accurately deals with the problem that is before this House. We saw this with the do-not-call legislation and with the voter identification where a bill was put before the House but the government did not get it right and it had to make amendments to the bills, which was time-consuming and costly.

Therefore, it is very important that the bill comes before the committee and has a full and extensive review to make sure that the bill is actually going to deal with the spam problem.

In Geist's article, he said:

Four years after the National Task on Spam unanimously recommended that the Canadian government introduce anti-spam legislation...the Government took action by tabling Bill C-27....

While the introduction of anti-spam legislation is long overdue, one of the most significant changes was not reported or even included in the government's briefing materials. Buried at the very end of the 69-page bill, are provisions that would lay the groundwork to kill the National Do-Not-Call list.

It is interesting that it was buried at the end of the bill and not included in any briefing documents, because what it actually says is, “Oops, we blew that initial piece of legislation”.

He continued:

The proposed approach is very complicated, but boils down to the government repealing the provisions that establish and govern the do-not-call list. In its place, the ECPA approach of requiring an opt-in would apply, meaning that Canadians would no longer need to register their phone numbers on a do-not-call list. Instead, the presumption would be that telemarkets could not call without prior consent. The ECPA would also bring with it stronger penalties (up to $10 million) and fewer exceptions.

Although the do-not-call list is less than a year old, change cannot come soon enough. It faced severe criticism earlier this year when it was reported that out-of-country telemarketers, who are out of the regulatory reach of the Canadian Radio-television and Telecommunications Commission, were accessing the list and making unwanted calls to Canadians. With more than six million numbers now registered on the list, the prospect of do-not-call registration leading to more calls rather than less instantly became a disturbing reality for millions of Canadians.

What that is talking about is people who registered their numbers, and then telemarketers outside of the country accessed the do-not-call list to call people. That seems like a pretty good gap in the legislation.

I hear some of my colleagues calling it a boondoggle. I would certainly say that it is a serious problem when the very legislation that is supposed to protect consumers actually results in more calls to them.

This is buried in this piece of legislation, changing the goof-up.

Geist said:

While the misuse of the do-not-call list remains a concern, a review of thousands of pages of internal government documents released under the Access to Information Act reveal that it is only the tip of the iceberg. In addition to lax list distribution policies, the enforcement side of the do-not-call list raises serious alarm bells with the majority of complaints being dismissed as invalid without CRTC investigation, the appearance of a conflict of interest in sorting through complaints, and a regulator that has been content to issue to “warnings” rather than levying the tough penalties contained in the law.

He went on to say:

The proliferation of the do-not-call list is certainly disconcerting, but [the] picture that emerges about its enforcement is even more troubling. The documents reveal that the CRTC receives over 20,000 telemarketing complaints each month, many involving the do-not-call list (some complaints may relate to other telecommunications rules that cover automated dialers or curfews).

The article goes on to talk about the fact that the initial evaluation of complaints is handled by Bell, which manages the do-not-call list rather than the CRTC. Here we have industry policing the do-not-call list and deciding whether complaints are legitimate or not. It goes on to talk about the fact that, for example, in January, Bell reported there were only 42 valid prima facie national do-not-call violations, while 3,033 national do-not-call complaints were ruled invalid. That is, in 42 out of 3,033 complaints, it was ruled by industry, Bell, that the complaints were not valid.

That does sound a little bit like the fox in the henhouse to me. So when we are talking about enforcement, as the member for Windsor West has rightly pointed out, there are some concerns about whether the enforcement mechanisms in the bill will actually be applied.

Geist goes on to say:

Complaints that survive Bell’s initial round of scrutiny go to the CRTC for further investigation. To date, the CRTC has sent out approximately 70 warning letters where it believes there are reasonable grounds to conclude that the organization is not in compliance with the do-not-call list legislation. Recipients of the letters are asked to take “corrective action” to address the concerns and warned that failure to do so could lead to penalties of up to $15,000 per violation for corporations. Notwithstanding that threat, the CRTC has yet to levy any fines.

When we have legislation that proposes a maximum penalty for individuals of $1 million, and $10 million for any other person, it sounds like pretty hefty fines. However, we need to put forward a mechanism that, first of all, allows appropriate investigation without interference by industry.

With regard to Bell, I do not know about anybody else, but I certainly receive messages from Bell. If I were to complain in regard to the do-not-call list and Bell is the investigator, I wonder what kind of independent scrutiny would be paid to that investigation.

The enforcement piece of this is critical. Canada's reputation internationally with regard to spam is in shreds. In order for us to tell the international community that we are going to walk the talk on this, we need to ensure that resources are put in place to make sure that the enforcement mechanism actually happens.

In conclusion, the New Democrats are in support of sending this bill to committee. I want to reiterate our position that it is very important that we have experts and technical witnesses who can deal with the content of this bill to ensure that Canada will actually be able to say, “Yes, we have anti-spam legislation that is going to stand up to international scrutiny, has appropriate enforcement mechanisms, and will actually protect businesses, consumers and Canadian citizens against both fraud and impact on the cost to productivity in this country.

Electronic Commerce Protection ActGovernment Orders

May 7th, 2009 / 3:55 p.m.
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Edmonton—Mill Woods—Beaumont Alberta

Conservative

Mike Lake ConservativeParliamentary Secretary to the Minister of Industry

Madam Speaker, notwithstanding the fact that the member spoke more about other legislation than this legislation, it sounds as though the NDP will be supporting this. I have a few comments after listening to what she had to say.

First, I will talk about one difference in the piece of legislation she was talking about versus this one. One of the things this bill has in it is a need to opt in. From a business standpoint, if a business wants to send a consumer emails advertising something, the consumer has to opt in to that. The company has to make sure that in the normal course of business it acquires a person as a customer or it advertises to the person who then indicates in some way that he or she actually wants to receive things from that company. That is different from what she was talking about being one of the problems of the do-not-call registry.

She also talked a bit about time. While it is clear that there is a need for this type of legislation, one of the advantages in having taken the time is that we have the opportunity to learn from best practices around the world that have been used in places like Australia, the U.S. and the U.K., and to implement those best practices into this legislation.

As well, we have the opportunity to set up a mechanism that allows us to work with jurisdictions around the world to ensure that we have enforcement that reaches beyond our borders, because of course, this is a cross-border issue. It is a global issue. This bill would allow the agencies charged with enforcement to work with similar agencies in other countries to ensure that we are able to tackle the issue of spammers sending spam to Canada from other countries, and also deal with our own issues of Canadian companies, organizations or individuals sending spam to other countries. We can now be made aware and then act according to the new rules that are in place.

I will wrap up with a question. Given that the NDP intends to support this bill and that there was some concern expressed about the time it has taken, and particularly given the fact that we are in another minority government context and do not know at which point Parliament might dissolve and we might be forced into another election and all legislation would die again, how dedicated would the NDP be to ensuring that this legislation gets through committee quickly, gets properly studied but becomes a priority for the committee, and then is brought back and passed through the House as quickly as possible?

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May 7th, 2009 / 4 p.m.
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NDP

Jean Crowder NDP Nanaimo—Cowichan, BC

Madam Speaker, I would like to correct a piece of information the member has put out there.

When I was talking about the do-not-call list, I was specifically talking about Bill C-27. I could refer the member to page 56 of the bill, and the clause relating to sections 41.1 to 41.7, which specifically relate to the do-not-call registry. Therefore, I was talking about the current piece of legislation.

When the member talks about what the NDP will do around the passage of this bill, it is incumbent upon members of this House to ensure that when they pass legislation, it actually is going to do the job that it purports to do. Again I just need to reference the do-not-call registry to demonstrate how we now have another bill having to deal with a past mistake. That is a waste of this House's time. We are now having to talk about the do-not-call registry once again because we did not get it right the first time. New Democrats will ensure that they study this bill very carefully to make sure that it is going to do the job it is supposed to do.

I also want to go back to the member's statement about businesses getting their customers' consent, and I specifically did say that. What I said was that the bill requires all senders to obtain express consent before sending commercial electronic messages. That is an important aspect of this bill and we would support getting permission to receive mail from a business.