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 / 4 p.m.
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Liberal

Derek Lee Liberal Scarborough—Rouge River, ON

Madam Speaker, I want to ask the member, in light of the request of the parliamentary secretary to consider passing this bill as quickly as possible, if she and others have considered the true, massive complexity lying behind our attempt to regulate this field. I will just ask her one question as an example.

The bill deals with freedom of communication. It deals with what is actually a charter right, a very conspicuous charter right. I wonder if anyone has noticed that the bill prohibits the sending of a commercial electronic message to an address, not a person but an address. It then says it can only be done if there is consent. It is an offence if it is done without the consent of the person to whom the electronic message is sent, but the offence has been framed as one where a message is sent to an electronic address, not a person.

There does not appear to be any place in the bill where the electronic address is actually matched up with a person. I think we are going to have to get out the chalkboard at the committee and go through this very carefully to try to get it right.

If it is the view of the government that it just wants to throw some Jell-O at the wall and see if it sticks, so that at least we are seen to be doing our job here in advance of an election, there is some rational for that in politics, but I think we had better try to get this right and I have concerns on the technical side as to whether this is going to pass muster.

Electronic Commerce Protection ActGovernment Orders

May 7th, 2009 / 4:05 p.m.
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NDP

Jean Crowder NDP Nanaimo—Cowichan, BC

Madam Speaker, the member makes a very valid comment. This is a very complex bill. It is 69 pages in length, I believe, and it is very important that parliamentarians do their due diligence.

Again, I talked about the do-not-call registry. What is important is that they fully study the aspects of this bill and look at the impact on business, on workers and on Canadian citizens, to make sure that there is no inadvertent impact.

The member across was quite correct when I talked about the voter identification bill. There was a bill that essentially prevented about a million rural voters from voting. That is an unintended consequence, unless of course there was a Machiavellian plan to cut off rural voters, which I am sure there was not.

We do not want to have a bill that has an impact that we did not foresee, so it is very important that the committee does its due diligence. It is a responsibility as a parliamentarian, when we are examining legislation, to do a 360° review. We need to make sure that this legislation is actually going to do what it is supposed to do and that it has the resources.

I talked about enforcement. It is meaningless if we put measures in a bill and do not devote the resources to making sure it can happen. We see that enforcement problem in other pieces of legislation. The do-not-call registry was a good example of it.

I would argue that it is incumbent upon parliamentarians to take the time to look at the bill, to make sure we understand what its impact would be, and to define some of those vague terminologies that were not quite clear on how we are going to enforce them or patrol them.

Electronic Commerce Protection ActGovernment Orders

May 7th, 2009 / 4:05 p.m.
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NDP

Jim Maloway NDP Elmwood—Transcona, MB

Madam Speaker, I want to follow up on the question by the member of the Liberal Party.

In around 2000 I had the good fortune in Manitoba to be the coordinator to bring in the electronic commerce act, which was the most comprehensive of its kind in Canada at the time. We put in a consumer provision for residents to be reimbursed by credit card companies if they purchased a product or service online and they did not receive it. At the time, there were only two or three states in the United States that had such a provision.

I am not sure whether it would be under this bill, but I wonder whether consumer legislation like that could be added to this bill.

Electronic Commerce Protection ActGovernment Orders

May 7th, 2009 / 4:05 p.m.
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NDP

Jean Crowder NDP Nanaimo—Cowichan, BC

Madam Speaker, I appreciate that the member is very aware of the need for consumer protection in any number of areas, including for airline passengers. He has done some very good work in that area.

Anything we can do to protect consumers is important. I would expect that when this bill goes to committee, one of the things that people will be looking at is consumer protection. Often consumers unwittingly end up on lists, whether they are credit card lists or other kinds of mailing lists, and their names get distributed all over the place. I would urge the committee to look at consumer protection as an aspect of this bill.

Electronic Commerce Protection ActGovernment Orders

May 7th, 2009 / 4:05 p.m.
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Conservative

Terence Young Conservative Oakville, ON

Madam Speaker, I am very pleased to speak in support of Bill C-27, the electronic commerce protection act. The key reason is that for eight years I operated my own business out of my home like thousands of other Canadians. I can say from first-hand experience that spam is bad news.

High speed Internet communication by email has become the predominant communication tool worldwide. It is the greatest enabler in the information age for small business and the self-employed. It allows thousands of small-business operators and the self-employed in every province to start their businesses and operate them at a profit. That includes writers, people in public relations, journalists, photographers, engineers, lawyers, event managers, fundraisers and many other occupations.

Email and high speed Internet allow thousands of disabled persons to operate businesses and to work from home. It creates almost a level playing field in that situation for disabled persons. It is an incredibly valuable tool for the disabled to communicate with business people and their family and friends.

Parents benefit hugely from home offices and email. The Internet has been a boon to parents who choose to stay at home with infants and children, which my wife and I have done in the past. They want to work in the evenings or do their email during their children's nap time or playtime if they have infants, as does my friend in Oakville, who operates a home business and is a mother as well. She has a little one-and-a-half-year-old. She can do them simultaneously. She is connected by her notebook computer to her clients, associates and, in fact, the world.

Aside from the travel costs, the most important common denominator and resource for self-employed people in small business is their time. I would suggest that time for the self-employed and small business people is actually priceless. It is almost a currency. When someone or some organization, without any invitation or permission and with no previous business relationship, at a very little incremental cost that is too small to measure, sucks up that time by using trickery and stealth marketing to steal that time with spam, it should be stopped.

Unsolicited, unlimited junk mail trying to sell people watches and many other products of very dubious value should also be stopped. Forwarding fraudulent messages designed to dupe innocent people and cheat them out of their savings should be stopped. For example, I would expect most of the people in the House today have received an email from a prince in Nigeria who only needs a little bit of money to get out of prison and is willing to share his resources for the rest of his life. The sad part is that if enough of those emails are sent out and enough mud is thrown against the wall, somebody will respond and somebody will be duped.

The key problem is that in normal marketing and in normal business, the legitimate kind, those wishing to sell goods and services are restrained to reasonable efforts by cost. It costs money to send letters, to make phone calls, to place ads and to get the attention of consumers and other businesses. In fact, the average cost for a letter is 70 cents to a dollar. However, on the Internet, the cost per contact for spam is actually too small to measure. It is not even pennies. Technology, which is our greatest tool, is also subject to abuse.

The Internet is a precious resource. Effectively it belongs to all of us. As subscribers to telephone and Internet services, we pay a fair amount and we are allowed fair usage. Millions of Canadians rely on the telecommunications network to conduct business. They move goods across continents and the oceans. They keep industry moving to help provide thousands of jobs in thousands of businesses. We share this resource, the Internet, to our mutual benefit.

However, there are limits to this shared network. The network cannot carry an unlimited number of messages. People who have ever tried to call their mother on Mother's Day might have had a busy signal, because that happens to be the busiest day of the year on the telephone network. If they try again and again, they will finally get through. Christmas morning and New Year's Eve are similar. There is a limit to the network.

When a relatively few companies, often not owned or operated by Canadians, send out millions of unwanted and unwelcome messages, they utilize more than their fair share of the network. They use a proportion of resources they have not paid for in fairness and they slow down or stop the email messages everyone else is trying to send or receive. They rob us again of more of our time. These spam senders suffer no significant costs when they send out thousands of emails and demonstrate a wanton disregard for the time of others.

Unfortunately, they are some of the most clever and seedy people on the planet. They devise ways to interrupt our shared network and waste the time of thousands of business people. It is very difficult to put a value on that time, but it is certainly in the millions of dollars. They pitch some products that few people would ever buy. It gets worse.

Recently, my own PC network adviser, Paul Lebl, explained to me that these spammers have developed viruses or worms. The emails have very deceptive subject lines and if the wrong email is opened, the virus or worm will search the hard drive and find every email address on the hard drive and send the spam to every one of those email addresses as well. It is a very insidious practice. I view it as vandalism and it has to be deterred or stopped.

No one is saying that this legislation is going to end all spam in Canada or worldwide, but it will help us work with other countries to reduce spam worldwide. It is about improving Canada's competitiveness in the electronic marketplace as well as protecting Canadian consumers from the most dangerous types of spam. Boosting the competitiveness of our economy and protecting Canadians are two primary priorities of our Conservative government.

Since taking office a little over three years ago, our government has taken action to improve the competitiveness of Canadian companies and of our economy as a whole. Budget 2009 continued to create a competitive advantage which will drive our economy forward for years to come.

We are taking steps to enhance our traditional industries with new knowledge and to create opportunities for the development of new industries.

While our economy obviously faces significant challenges as a result of the dramatically reduced demand in the United States, the proactive initiatives of this government have lessened the blow. The good news is we are positioned to come out of this crisis faster than other countries.

Some members of the House have expressed interest in introducing new taxes and raising existing ones. Our government believes that this would be the wrong approach.

New measures taken by our government have been aimed at improving competition and not just filling government coffers or satisfying special interests.

As mentioned, this bill is about continuing to improve Canada's competitiveness. We are already leading the way in e-commerce, but our online economy is under threat from unsolicited commercial email which undermines consumer confidence and hurts productivity.

The global cost of this unsolicited email, or spam, is estimated at $100 billion a year. Spam costs Canada an estimated $3 billion annually. As has been mentioned, spam represents about 87% of the email traffic around the world at 62 trillion spam emails during that time period.

Spam is a nuisance. It undermines competitiveness and it puts Canadians at risk. Our proposed electronic commerce protection act would deter the most dangerous forms of spam, like identity theft, phishing and spyware. It would help drive spammers out of Canada and allow us to work with our international partners to pursue spammers outside the country.

As usual, our Conservative government is taking action to protect consumers and businesses. We are not just talking. We are acting. This initiative will mean a lot to individuals and to businesses. Individuals will be more confident when they choose to shop online. Businesses will be able to more effectively protect their brand and their online reputation while improving their productivity.

As well as being consistently committed to competitiveness, our Conservative government has always believed in acting when people break the rules. This bill is accompanied by significant and tangible penalties. Offences carry fines of up to $1 million for individuals and $10 million for businesses. Spammers beware.

There are a number of other aspects of this issue which I want to quickly highlight before I conclude.

First, the bill covers text messaging or cellphone spam. The provisions in the bill are not limited to certain types of technology. They target all spam and will continue to be relevant as technology evolves.

Second, this will not affect legitimate or responsible businesses that contact customers or potential customers who have signalled their desire to be contacted.

Third, this approach has been implemented in many other countries with substantial success. Australia, the U.K. and the U.S. have passed strong domestic laws combatting spam, similar to this one. In Australia, for example, the spam act significantly reduced the country's proportion of global spam. Some Australian spammers shut down altogether.

Unfortunately, the bill would not eliminate spam altogether, but it would serve to deter the most dangerous, destructive and deceptive forms of spam, especially those that facilitate other criminal activities, like identity theft.

Finally, the bill would deliver on a commitment made in our 2008 election platform, I am proud to say. That platform stated:

A re-elected Conservative Government led by Stephen Harper will introduce legislation to prohibit the use of spam (unsolicited commercial email) to collect personal information under false pretences and to engage in criminal conduct. The new law will reduce dangerous, destructive and deceptive email and web site practices, and will establish new fines for those who break the law.

We made a commitment, and we are getting the job done. We are improving competitiveness and we are protecting Canadians.

Electronic Commerce Protection ActGovernment Orders

May 7th, 2009 / 4:20 p.m.
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NDP

Charlie Angus NDP Timmins—James Bay, ON

Madam Speaker, while I have read the bill very carefully, and I listened to my hon. colleague's position on it, the one thing that has been left out is a lot of very legitimate businesses make a lot of money on spam, such as the phone giants.

Every time a spam message goes to some teenager's cellphone, the teenager has to pay. The spammer does not get paid, the phone giants get paid. Kids, with their little cellphone accounts, have no ability to stop these spammers. The messages come in and they have to pay, month after month.

I would think it would be incumbent upon us, if we are truly to protect people from spam, to put into the legislation that the phone giants cannot make backhanded money off people who are dependent on their phones and get hit by these spammers.

Does the member not think it would be prudent for us to say that there should not be charges levied against people who are innocently victims of spam?

Electronic Commerce Protection ActGovernment Orders

May 7th, 2009 / 4:20 p.m.
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Conservative

Terence Young Conservative Oakville, ON

Madam Speaker, I presume when the member talks about the phone giants, he means the large telecommunications companies. I think what he is talking about is young people who already are paying, competitively compared to worldwide, too much for their cellphone bills are now paying too much for unsolicited messages.

That is part of the benefit of the bill. As spam reduces, young people will get fewer unsolicited emails and those bills will go down.

Electronic Commerce Protection ActGovernment Orders

May 7th, 2009 / 4:20 p.m.
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NDP

Jim Maloway NDP Elmwood—Transcona, MB

Madam Speaker, Internet security has been an emerging business, growing very rapidly over the last number of years now because of issues such as this.

Ten years ago the Manitoba government had security people earning $100,000 a year. We could not keep them because the banks were hiring them at more than double the price. This has been the effect of not having legislation in place all these years, allowing these spammers to be running free in our market.

The question really comes back to how committed the Conservative government is to this, beyond getting a nice press release out and some good coverage, like they did on the do-not-call legislation last year, but then doing very little enforcement?

It is incumbent upon us to tighten the noose around the government as much as we can to make certain that it has no option to get out of enforcing a very strong act.

Electronic Commerce Protection ActGovernment Orders

May 7th, 2009 / 4:20 p.m.
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Conservative

Terence Young Conservative Oakville, ON

Madam Speaker, I want to point out what I mentioned in my remarks earlier, and that is the bill is accompanied by significant penalties.

Offences carry fines of up to $1 million for individuals and $10 million for businesses. These are not cost of doing business fines. These are very significant fines. Working in conjunction with authorities in the other parts of the world, where the Internet is getting clogged with spam and people's time is being wasted, we think they will be quite effective.

Electronic Commerce Protection ActGovernment Orders

May 7th, 2009 / 4:25 p.m.
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NDP

Jean Crowder NDP Nanaimo—Cowichan, BC

Madam Speaker, I was talking earlier about the do-not-call list. Page 56 of Bill C-27 talks about repealing sections 41(1) to 41(7) of the act, and that has to do with the do-not-call registry. Could the member comment on the fact that we saw some pretty serious problems with enforcement with the do-not-call registry and the do-not-call list?

I mentioned the fact that the first level of complaint was Bell. If Bell determined there was a valid complaint, it would then be referred to the CRTC. The CRTC issued 70 warning letters and levied no fines in relation to the do-not-call registry, even though the ability to levy a fine was within the act.

The fines in this legislation are much more serious. However, could the member specifically comment on the requirement for enforcement and what he sees as being important aspects of that enforcement?

Electronic Commerce Protection ActGovernment Orders

May 7th, 2009 / 4:25 p.m.
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Conservative

Terence Young Conservative Oakville, ON

Madam Speaker, enforcement is a matter of the words of the bill and the regulations in the bill and how the various parties want to enforce it.

It should be noted that the electronic commerce protection act will not abolish the do-not-call list. I think the member might be aware of that. There are published reports to that effect, and it is not true.

For greater certainty, there is a section of the bill that remains dormant until it is made law by an order-in-council and by regulation.

Section 6.7 of the electronic commerce protection act carves out telemarketing and interactive voice communications to be treated differently, but it does not repeal the do-not-call list.

On the matter of enforcement, I understand the bill is going to committee. There will be discussion at committee and we look forward to hearing the comments of the other parties on how that might be achieved.

Electronic Commerce Protection ActGovernment Orders

May 7th, 2009 / 4:25 p.m.
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NDP

Charlie Angus NDP Timmins—James Bay, ON

Madam Speaker, I hope we will get the bill to committee. I have heard from the member and the parliamentary secretary that there is no power to cancel the do-not-call registry. Yet sections 41.1 to 41.7 of the act is the do-not-call registry.

Either the Conservatives are slipping it in the bill or they are not sure it is in the bill. Maybe they want to work with us at committee and go through the bill. I would be very wary about us going too far out front on giving our imprimatur to a bill that clearly is doing something the members are telling us it is not.

Electronic Commerce Protection ActGovernment Orders

May 7th, 2009 / 4:25 p.m.
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Conservative

Terence Young Conservative Oakville, ON

Madam Speaker, I will go over it again for the member. The electronic commerce protection act does not abolish the do-not-call list. Clause 6.7 carves out telemarketing by exempting interactive voice communications, facsimiles and voice recordings to telephone accounts from the application of the act.

The provision at the end of the bill, which is clause 86, allows for the repeal of the do-not-call list at the time of the government's choosing in the future. It does not repeal the list. It leaves the door open for greater certainty. Clause 86 will remain dormant until the government chooses to enact it by order-in-council.

Electronic Commerce Protection ActGovernment Orders

May 7th, 2009 / 4:25 p.m.
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NDP

Charlie Angus NDP Timmins—James Bay, ON

Madam Speaker, I am very glad we finally dragged it out of the hon. member. It is in the bill, but it is not in the bill unless the government decides to enact it, so we would be giving the government the power to do that. The Conservatives have told the House again and again that it is not there, but now we finally see it is there, but they will only enact it when they choose to enact it.

Again, why is it in the bill? Why does the government not at least have the guts to come out and say that it completely blew it on the registry. It had no enforcement plan. This has been a complete debacle.

Now the Conservatives are slipping it in the bill and whenever they feel comfortable, they will remove it. Why not just tell the House of Commons that they blew it and they have to fix it? They put it in an anti-spam bill and they do not want to say that.

Electronic Commerce Protection ActGovernment Orders

May 7th, 2009 / 4:30 p.m.
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Conservative

Terence Young Conservative Oakville, ON

Madam Speaker, it is worth going back to the purpose of the act. The intention of the proposed electronic commerce protection act is to reduce the most damaging and deceptive forms of spam and other computer-related threats that discourage the use of electronic commerce and undermine personal privacy. It will address spam that is malicious in content, those emails that attempt to lure Canadians into fraudulent transactions or counterfeit websites.

A recent scheme, of which the member may be aware, was the UPS re-shipping fraud scam. A fraudulent company, posing as UPS, sent out a spam in an attempt to lure individuals into receiving shipments and sending that shipment, which would usually be overseas, to a second party in turn for payment. Of course the payment never came.

The bill would provide tools for businesses and network providers to better protect the networks on which we purchase products and do our banking. It would provide better protection for our personal information online and prohibit the bulk sharing and compilation of electronic addresses.

I hope that helps the member.