Bill C-27 (Historical)

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 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.

[Janet DiFrancesco]

Thank you for the question.

The bill before you does very much reflect the previous Bill C-27, ECPA. The changes that were made, other than the two that I mentioned in my opening remarks, were made as the result of a careful review of the bill after the House was dissolved. For example, it was noticed in a number of areas that the French version of the bill was missing concepts that existed in English. There are maybe three or four of those types of amendments that correct the French-language version to reflect the English.

There was also, for example, an amendment that was made at committee to clause 8, which deals with.... Let me just look at the bill. Sorry. We added the provision for someone who is receiving the electronic message to consent to a change of the alteration of the transmission data, but that change should have been mirrored in clause 12, which allows someone to withdraw their consent, and that was missed. So the drafters noticed that in order for the parallel amendments to make sense under clause 8, we needed to make an amendment under clause 12 as well.

Similarly, a number of the amendments dealing with the changes to the Competition Act needed to be modified to make sure they were consistent with other provisions in the Competition Act--for example, reference to reviewable conduct, as opposed to just a contravention under the act.

So we took the opportunity when the House was dissolved to make sure that there were no other changes to the bill that were required. You will recall that there were a number of changes made the last time, and it was important that we took the time to make sure that the parallel changes were reflected all the way through.

[Robert Bouchard, Bloc, Chicoutimi—Le Fjord, QC]

Thank you Mr. Chair.

Thank you ladies and gentlemen for being here today.

My first question is for Ms. DiFrancesco.

First, we know that Bill C-28 was Bill C-27, which was studied in committee and made it all the way to the Senate. However, when the election was called, the bill died on the order paper. You said that Bill C-28 is quite similar to Bill C-27, which suggests that there are some changes. Could you share some of those changes?

I have another question about that. Do these changes come from officials or other entities?

Fighting Internet and Wireless Spam Act

[Glenn Thibeault, NDP, Sudbury, ON]

Mr. Speaker, I will be splitting my time with the member for Ottawa Centre.

I am pleased to rise in the House today to speak to Bill C-28, Fighting Internet and Wireless Spam Act. The bill is an updated version of Bill C-27, which incorporates items that were added as government amendments during its original passage through the House in 2005.

It is fair to say that ordinary individuals are being overly inundated with unwanted spam in their email inboxes on a daily basis. Spam currently accounts for more than 80% of global email traffic and around 90% of Canadian email traffic. In addition to the nuisance that spam poses, as well as the decreased productivity and efficiency which spam entails, spam can also pose a significant risk to individuals who unwittingly open maliciously infected emails. Thus the issue of spam is not solely connected to economic and individual efficiency on productivity, but also to the increased rate of identity theft and other forms of illegal activity, which has grown alongside the rapid increase in the online shopping industry during the beginning of the 21st century.

What is spam? Spam is identified as the abuse of electronic messaging systems, including most broadcast media digital delivery systems, to send unsolicited bulk messages indiscriminately. While the most widely recognized form of spam is email, the term applies to similar abuses in other media: instant messaging, Usenet newsgroups, web search engines, spam, spam in blogs, WikiSpam, online classified ad spam, mobile phone messaging spam, Internet forum spam, junk fax transmissions and file sharing networks. This is not a Monty Python skit, it is actually a very serious issue.

Spam seems to infiltrate every aspect of our lives these days and it is extremely important for the Canadian government and Parliament to take this on.

Let us look at the legislative summary for this. It says that this is an act that is an accumulation of a process that began with anti-spam action planned for Canada launched by the government in 2004, which established a private sector task force, chaired by Industry Canada, to examine the issue of unsolicited commercial email or spam. By the end of 2004, spam, which is in many ways the electronic equivalent to junk mail, has grown to encompass 80% of all global email traffic.

That was 2004 and here we are in 2010 and we are once again debating legislation. The initial legislation was lost when the House was prorogued. We have again lost time dealing with an issue that is extremely important to businesses, consumers and ordinary citizens in our country. This is complex legislation. It has many pages and it impacts on a number of different agencies.

However, let us look at some of the costs.

In both commercial and non-commercial cases, spam happens because of a positive cost benefit analysis result if the cost to recipients is excluded as an externality a spammer can avoid paying. The cost is the combination of overhead. The cost of the overhead of electronic spamming include bandwidth developing or acquiring an email, wiki or a blog spam tool and taking over or acquiring a host or a zombie. The transaction cost is the incremental cost of contacting each additional recipient once a method of spamming is constructed multiplied by the number of recipients, the risks, the chance and severity of legal and/or public reactions, including damages and punitive damages. Then there is the impact on the community and/or the communications channel being spammed.

The benefit is the total expected profit from spam, which may include any combination of the commercial or non-commercial reasons listed above. If we talk about how quickly this can become a global epidemic, so to speak, we could have millions of emails go out asking for credit card information and just a small percentage of that is returned as a huge benefit, negatively of course, but it is still a benefit.

We are starting to see spam now used in crime. It can be used to spread computer viruses, Trojan horses, or other malicious software. The objective may be identity theft or advanced fee fraud. Some spam attempts to capitalize on human greed, while others attempt to use victims inexperienced with computer technology to trick them, such as phishing.

In May 2007 one of the world's most prolific spammers, Robert Alan Soloway, was arrested by U.S. authorities. Described as one of the top 10 spammers in the world, Soloway was charged with 35 criminal counts, including mail fraud, wire fraud, email fraud, aggravated identity theft and money laundering. Prosecutors alleged that he used millions of zombie computers to distribute spam during 2003. This was the first case at that time in which U.S. prosecutors used identity theft laws to prosecute a spammer for taking over someone else's Internet domain.

We have been labelled, unfortunately, as a lawless spam haven. Canada is the only G8 country without anti-spam legislation. It is only a matter of time before spammers will begin to take advantage of this. Canada ranked fifth worldwide as a source of web-based email spam, trailing only Iran, Nigeria, Kenya and Israel. This information is from a research study done by Cloudmark, a leading provider of anti-spam software.

A recent Facebook case has placed the spotlight on Canada's ongoing failure to address its spam problem by introducing long overdue anti-spam legislation. The Facebook case is only the latest illustration of the impact of government inaction.

Companies anxious to target Canadian-based spammers have been forced to turn to other countries to do the job, while international law enforcement investigations into criminal spam activities run the risk of stalling as Canada's authorities may lack the requisite investigatory powers.

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

My colleague earlier talked about the OPP PhoneBusters and the great work it was doing to protect seniors and any person being dealt with fraudulently. Part of this group is based out of North Bay, Ontario. Many times PhoneBusters has put out announcements in my great riding of Sudbury, advising seniors to watch for an email campaign coming from some country that is asking for their credit card information. We are going in the right direction if we are able to start protecting our seniors and those who are infrequent users of electronic media.

Canada initially recognized the need to address spam with the formation of a task force in 2004, which included a broad cross-section of marketers, telecom companies and public policy groups. The task force unanimously recommended that the government introduce anti-spam legislation.

There are some very important aspects in this bill.

Under commercial activity, the bill contains a new exemption where it explicitly does not include any transaction, act or conduct carried out for the purpose of law enforcement, public safety, the protection of Canada in the conduct of international affairs or the defence of Canada.

The electronic address covers email, instant messaging, text messaging and messages sent on Facebook and Twitter. These things did not exist five years ago, and we have seen technology evolve rapidly. We will ensure that we can capture all aspects of spam by using that language.

The electronic message includes a message sent over any means of telecommunication, including text, sound, voice or image and therefore implicates voicemail messages. The commercial electronic message is based on the type of content contained in it, including contained links. Thus, for commercial purposes in any way, it qualifies under this definition.

Telecommunications service extends to any service or feature of a service provided by means of telecom facilities. Transmission data is any data relating to the telecommunications function of dialing, routing, addressing or signalling, including by phone, Internet and wireless involved in all functions of transmitting data electronically outside the actual substance of the message.

This is a very complex issue. We talk about many avenues and ways in which those with not so positive ideas can get their way out.

It is clear that introducing anti-spam legislation is intricate for both Canadians and Canada more broadly. I am glad to support the bill.

[Scott Simms, Liberal, Bonavista—Gander—Grand Falls—Windsor, NL]

Mr. Speaker, I was going to start off with some of the technical matters at the very beginning, including the title of the bill and some of the functions in clause-by-clause material, but I do want to pick up on one thing that was brought up by my colleague from Sudbury.

He talked about seniors, and this is a perfect illustration of why we work in this House to legislate practices like this, because many seniors now are using devices such as Facebook and text messaging. Pictures can be transferred through our phones now and that sort of thing. A lot of seniors get these emails and a lot of them become victims as a result in many cases. One of the reasons is that it is hard for public relations campaigns, such as Crime Stoppers and others, to keep the pace going with the methods with which they are communicating and getting their bad products out there. It started out with just emails. Now we have things such as text messaging and Facebook.

My hon. colleague brings up a good point. We are looking at victims now, and because the seniors' ranks are becoming much larger because of what we call the baby-boom effect, we do have to keep pace with legislation much more quickly than we have been thus far. I would have to say that we have been a little too delayed in this particular bill, but nonetheless we have it here and it is nice to see that all parties are in support and that we are going to do this exercise once again. I say “once again”, because we started out with Bill C-27, which was left over from the last session. Now we find ourselves with Bill C-28, and some modifications have taken place since then, which I will touch upon in just a few moments, but this indeed does look to enact an electronic commerce protection act, prohibiting the sending of electronic commercial messages, or spam email, without the prior consent of recipients.

One of the key elements of this is going to be the idea of consent and just how we have to formalize this. Not only that, but we have had to expand the idea of what consent means, whether it is implied or not. As we know, if we are dealing with websites, many of them prompt us for contact information and there is always that disclaimer or a box that we have to click on, giving consent to receive unsolicited email. That has to be brought into context.

We have to talk about the international context, which my hon. colleague from Mississauga South mentioned earlier. That is to say that in the context of the G8 we are the last ones to get on board, so it is time we saddled up to this particular issue and did it the right way. I would implore all members to send this to committee as soon as possible, similar to the last go-round with Bill C-27. Some modifications were made in Bill C-27 that help with the language and allow it to be a little more flexible.

This is not on the floor yet, but when we talk about the copyright bill, Bill C-32, which is on the order paper and hopefully will come up for debate pretty soon, we are looking at ways in which the context of digital technology is changing the way we act as legislators. Flexibility is required. Mr. Speaker, I am sure you will agree with me that in the context of flexibility, the legislation has to be devised and written so that it can be enforced in a way that gives people protection and preserves their rights but at the same time goes after the people out to do nefarious things, in other words, circumvent laws, whether it be about copyright and digital locks in Bill C-32 or, in this particular case, getting around the consent for people to receive this information. Sometimes these people are very deceptive. They pretend to be what they are not. They shroud themselves in a realm of legitimacy.

Whether they call themselves a bank or a financial institution, they parade themselves as such and become a part of a person's life or know they can get involved in a person's life by pretending to be something that has a great reputation. With the imagination of using emails, Facebook and messaging, they have ways of doing this. It seems there are advances every day in the criminality of this type of activity. So we have to look at that.

The other issue we have to look at, of course, is digital technology itself and how it proliferates in a short period of time. When we first tackled the issue in the House, we looked at it through a panel. We set up a panel to decide how we were going to deal with all the spam email. Billions of dollars every year are spent on trying to cut down on spam email. It now constitutes the majority of traffic around the world when it comes to e-commerce and emailing in general, for that matter.

We can well imagine that back then, as it was becoming a problem, we set up a panel. That was in 2004 and 2005 when we were primarily looking at emails. There was just that one form of communication that we were focused on. Since then, we have text messages and Facebook, which was not looked at in 2004-05 as it is a relatively new concept, and other modes of communication such as texting.

Right now, Mr. Speaker, I can take a picture of you and send it around the world. How about that?

[Paul Szabo, Liberal, Mississauga South, ON]

Mr. Speaker, I hope to get a chance to speak to this bill later because the bill is very important. In his speech, the minister reminded us that we are the only G8 country that does not have anti-spam legislation. He also laid out the cost. As the member also alluded to, the cost is very significant. On a worldwide basis the cost is something like $130 billion a year as a consequence of not having this legislation.

There are privacy issues as well. The minister did not spend very much time on the aspect of personal privacy information under PIPEDA, another area in which personal information is being collected by harvesting addresses.

When we consider that the bill was going along very well and there was all-party support in the House for Bill C-27 in the last session, if it is so important, why did the minister have to introduce it again and start the process all over rather than refer the bill straight to committee so that we could get this legislation passed?

[Robert Bouchard, Bloc, Chicoutimi—Le Fjord, QC]

Mr. Speaker, Bill C-28 introduces measures that people and businesses have been waiting for for a long time. The government also put this measure forward as Bill C-27. Now we are dealing with Bill C-28.

I asked this question earlier, but I would like to hear the member's opinion, which may differ from that of the NDP member. Why does he think it took so long to get to Bill C-28?

[Joe Volpe, Liberal, Eglinton—Lawrence, ON]

Mr. Speaker, is all the dedication and energy that we are going to put into discussing Bill C-28 going to go the same way as Bill C-27? Is the government going to prorogue before we actually realize some of the claims that he thinks the bill is going to put forward?

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Mr. Speaker, I am rising to speak on behalf of New Democrats on Bill C-28.

I want to start by acknowledging the good work the hon. member for Windsor West has done on the anti-spam legislation, both the current piece and the previous piece of legislation that was before the House.

New Democrats will be supporting Bill C-28 at second reading to get it to committee. Of course, as always, I know that the members of the industry committee will do their due diligence in reviewing the bill thoroughly to make sure that there are no clauses of the bill that could have unintended consequences.

I want to speak briefly. I spoke to this bill back in May 2009 when it was Bill C-27. I was fortunate enough to sit in on some of the industry committee's hearings on the anti-spam legislation. I want to start by reading into the record a definition of spam. I think most of us in the House know what spam is, but not all the Canadians who may be listening to this debate may be aware of what it is.

Spam is identified as the “abuse of electronic messaging systems, including most broadcast media 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, Usenet newsgroups spam, web search engine spam, spam in blogs, wiki spam, online classified ads spam, mobile phone messaging spam, Internet forum spam, junk fax transmissions...and file sharing networks.”

Spam seems to infiltrate every single aspect of our lives these days, and it is extremely important for the Canadian government to take this on.

I want to read a brief statistic from an article by Peter Nowak on July 14. He wrote that New Brunswick is hardest hit in Canada. It reads:

New Brunswick receives the most spam email of the Canadian provinces while nearby Newfoundland and Labrador gets the least, according to a report from security firm Symantec. About 92.5 per cent of email in New Brunswick qualified as spam over a 10-month period.

It goes on to say:

That was the worst rate in the country and the only province to exceed the global average of 89.3 per cent.

New Brunswick, British Columbia and Saskatchewan exceeded the Canadian average of 88 per cent. Newfoundland and Labrador fared best with only 86 per cent of email considered spam, followed by Quebec, Nova Scotia and Manitoba at 87 per cent, Ontario at 87.5 per cent and Alberta at 87.6 per cent.

I know that the hon. member for Windsor West has identified this before, but we need to recognize that Canada is actually in the top 10 in the world. We are the only G8 country that does not have this type of legislation.

When one starts thinking about the fact that a province like New Brunswick, where 92.5% of all email in the province is spam, one can see that we have a very serious problem facing us.

I want to turn briefly to the legislative summary, because there are a couple of aspects of this bill that I think are important to note. Other members have pointed this out, but I would like to highlight the fact that we have been talking about anti-spam legislation for a number of years.

In fact, the legislative summary says that this act is a culmination of a process that began with the anti-spam action plan for Canada launched by the Government of Canada in 2004, which established a private sector task force, chaired by Industry Canada, to examine the issue of unsolicited commercial email, or spam. By the end of 2004, spam, which is in many ways the electronic equivalent of junk mail, had grown to encompass 80% of all global email traffic.

It goes on to talk about the fact that the task force issued a report in May 2005 examining the spam situation in Canada and recommended, among other measures, that legislation specifically aimed at combatting spam be created.

That was 2004, and here we are in 2010. We are once again debating legislation. The initial legislation, Bill C-27, was lost when the House prorogued. So we again have lost time dealing with an issue that is extremely important to businesses, consumers, and ordinary citizens in this country.

This is a complex piece of legislation. It is many pages long and it impacts on a number of different agencies.

The agencies that are involved in the regulation of spam include the Competition Bureau, the Office of the Privacy Commissioner and the CRTC. In addition to setting up a regulatory scheme to deal with spam in Canada, the bill gives these agencies the power to share information and evidence with international counterparts in order to deal with spam coming from outside the country. It goes on again to emphasize the fact that Canada is the last of the G8 countries to introduce anti-spam legislation.

One of the points raised in this legislative summary is the fact that Canada, in some respects, is seen on the international market as a haven for some of these spammers from outside the country because of our lack of legislation. The legislative summary goes on to say that the act:

will provide a clear regulatory scheme including administrative monetary penalties, with respect to both spam and related threats from unsolicited electronic contact, including identity theft, phishing, spyware, viruses, and botnets. It will also grant an additional right of civil action to businesses and consumers targeted by the perpetrators of such activities.

At the very end of the Bill C-27 legislation, when it was introduced, were a couple of clauses that dealt with the do not call list. Again, Bill C-28 has the same inclusion in the legislation. It says that they

would give the government the power to repeal legislation for the relatively new Do Not Call List for telemarketers. Since it was introduced in 2008, the Do Not Call List has been subject to much criticism owing to telemarketer misuse of the names on the list.

I want to refer to another aspect of that. It says that:

The delayed set of amendments provides the framework for replacing the do not call list with a new scheme at a future date, as described earlier in the summary. The powers to be restored with the delayed amendments include the power to regulate the hours during which such communications can be made, the contact information that must be provided by the communicator and the way in which it must be provided, and the use of automated telephone calls.

The reason I raise this in the context of Bill C-28 is that this inclusion of the ability to amend the do not call list legislation is important to note, because the do not call list legislation actually was flawed. That is why it is important that the House refer the bill back to the industry committee for a thorough review.

Now I know that we had hearings on Bill C-27, and there have been some amendments to this legislation as a result of those hearings, but it is important that we reconsider this legislation and make sure that there are not any unintended consequences such as we saw with the do not call list.

There are a couple of other aspects of this legislation that are important to note as a result of industry hearings and the input that was heard. Clause 66 in Bill C-28 now allows for a review three years after the day on which the section comes into force.

[A] review of the provisions and operation of this Act must be undertaken by any committee of the Senate, of the House of Commons, or of both Houses of Parliament that is designated or established for that purpose.

It is very important that the mandate to review the legislation three years after coming into force is in place again so that we can determine if there have been further changes in the whole electronic media that would require some further amendments. We can determine whether the piece of legislation is effective. We can determine if adequate resources have been put in place in order to make sure that the agencies involved have what they need to oversee and enforce the legislation.

I think others have referred to the very substantial fines that are now in place to make sure that there are some teeth to this piece of legislation.

There are a couple of aspects of the legislation that came up when it was under study when it was Bill C-27. I want to turn to an analysis that was done by a law firm called McCarthy Tétrault that pointed out a couple of aspects that raised some concerns. I want to outline the summary of a couple of these aspects. One of these was about consent. It says that the legislation contains certain exceptions to the rule about consent. It says that consent is not required

to send a commercial electronic message, the purpose of which is to provide a quote or an estimate; facilitate, complete or confirm an existing commercial transaction; provide warranty information; provide information related to an ongoing subscription, membership, account or loan; provide information related to an employment relationship; or deliver a product, goods or a service, including product updates and upgrades.

It goes on to say that the list is not exhaustive, and that other purposes may be specified in the regulations.

I am bringing this up because business has raised concerns. Some in the business community think that this legislation is too onerous, that it would not allow businesspeople to communicate with their customers or potential customers.

Clearly, the legislation has made some attempt to recognize that there is an ongoing business relationship that needs to be maintained, and it has outlined situations in which that consent would not be required.

It goes on to say:

The bill also provides for certain situations where consent can be implied, including where:

- the sender has an existing business relationship with a recipient (provided the relationship is entered into within the specified time frames);

- the recipient has “conspicuously published” its electronic address and has not indicated a desire to not receive unsolicited commercial electronic messages, and the message is relevant to the recipient's business role; or

- the recipient has provided its electronic address to the sender without indicating a wish not to receive unsolicited commercial and electronic messages.

When requesting express consent to send unsolicited commercial messages, an organization would have to set out “clearly and simply” the purpose(s) for which the consent is being sought, information identifying the organization that is seeking the consent, and any other information that may be prescribed.

The [act] also stipulates the electronic message must:

- identify the sender;

- provide contact information for the sender; and

- include an “unsubscribe” mechanism....

I think what is required of businesses is clear, as are the references to the protection for consumers. It does not appear that these are going to be onerous.

I want to touch on a couple of other aspects that are important when we are talking about the viability of business.

When it was Bill C-27, Professor Michael Geist appeared before the industry committee. I know he was talking about Bill C-27, but I think some of his comments are applicable to Bill C-28. He stated:

The introduction of Bill C-27 represents the culmination of years of effort to address concerns that Canada is rapidly emerging as a spam haven. I don't think I have to convince you that spam is a problem, whether it's the cost borne by consumers, schools, businesses, and hospitals in dealing with unwanted e-mail, or the shaken confidence of online banking customers who received phished email. There is a real need to address the problem.

Professor Geist identified that there was an impact on businesses. Many times in this House we have heard concerns raised about Canadian productivity in the workplace. When we understand the volume of spam that is coming in, whether it is via email, text messaging, or electronic media that businesses are using, we can understand the concern about the impact on business productivity.

There are varying statistics about the amount of time it takes for workers to recover when they are interrupted in a task. Many of us in this House can attest that, even though we have a good filter on our email system, we are still occasionally bothered by spam.

Imagine in a regular workplace where up to 90% of emails may be spam if there are not adequate filters in place. Every time they have to go through their email box and clear emails, or they are interrupted in their work, it affects the business's productivity, its quality, its performance. I saw a statistic that every time workers were interrupted at a task, it took them up to seven minutes to get back to where they had left off. So we can see that this has a definite impact on workers' ability to perform well in their jobs.

The other aspect of this, and it can be quite troubling, is the effect on seniors. Despite the unfair stereotype, I believe many seniors are absolutely email literate. They rely on email to communicate with loved ones, to do business, and to do all the things that Canadians under the age of 65 do.

One of the real concerns about spam is that seniors and other unsuspecting people end up being fraudulently sold goods or services.

Another important purpose of the bill is to protect vulnerable citizens from spam, whether it is banking fraud or investment fraud. I think many of us have received those unfortunate emails from overseas that tell us to send money to get somebody out of jail. It is sad that unsuspecting Canadians have sent money, only to learn that their money has gone down the tubes. That is an important aspect of the bill.

Professor Geist also raised another issue when he did his presentation to the committee. He said:

Let me conclude with a warning against what I see as some lobbying efforts to water down what I see as reasonable standards found in this legislation. I note that we have seen this before. It is what took place with the do-not-call list. The bill started with good principles, faced intense lobbying, and I think some scare tactics, and by the end of the process Canadians were left with a system that I think is now widely recognized as a failure, with some estimates saying that more than 80% of the calls that used to come, continue to come, and with security breeches around the do-not-call list itself.

I think we must avoid a similar occurrence with respect to the anti-spam legislation. Changes in some business practices might be scary to some, but we cannot allow scare tactics to persuade you from moving forward with this much-needed legislation.

In that context, when businesses are looking at the potential costs of complying with the legislation, getting the appropriate consent, and doing all the things that are laid out in the legislation, it is important to encourage them to consider the costs of dealing with the amount of spam that is out there.

In conclusion, New Democrats will be supporting Bill C-28 to go to committee for further review, and we are optimistic that perhaps this time it will actually get through the House.

[Robert Bouchard, Bloc, Chicoutimi—Le Fjord, QC]

Mr. Speaker, this is the third time in a year that I have risen in the House of Commons to discuss the bill on electronic commerce, known as Bill C-28 this time around.

The former Bill C-27 sparked a lot of public interest, and a number of witnesses who testified before the committee essentially told us that we needed to move forward in order to provide better protection for email users.

The new Bill C-28 specifically targets unsolicited commercial electronic messages. People have been demanding such a bill for some time, and it is sorely needed. Governments, service providers and network operators are all affected by spam. We must create safeguards for legitimate electronic commerce, and we must do so now. Commercial emails are also essential to the development of the online economy.

Bill C-28 was inspired primarily by the final report of the task force on spam, which was set up in 2004 to examine the issue and to find ways to eliminate spam.

Some groups had reservations about the former Bill C-27 and made suggestions for amendments. The main concerns and questions from these groups had to do with the enforcement of the legislation.

Parliamentary committee members had to examine a number of issues. Even now, this bill amends the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act.

As a result, government officials in each of these sectors came to tell us why and especially how the amendments would apply and how we could be certain the changes would be useful.

We supported the former Bill C-27 as amended by the committee. Therefore, we will support Bill C-28, whose contents are more or less the same, so that the committee can study it.

We are aware of the need to legislate quickly, but we must also proceed carefully in light of the many witnesses the committee has already heard from.

I hope that the work the committee has already done will prove useful and that we will be able to proceed more quickly.

Let us not forget that we first started talking about spam in 2004 and that six years on, we still do not have legislation to get rid of spam.

I would like to expand on one point. The government accused the committee of taking its time when studying this bill and of holding up the electronic commerce bill's progress.

I want to make one thing clear: Bill C-28 is not a back-of-the-napkin affair. It covers a number of complex issues and clauses. It is to be expected that committee members and our research teams be given the time to study the content of the bill. I am sure that this electronic commerce protection bill would be in force by now had the Conservative government not prorogued Parliament. We lost a lot of time because of that.

I want to reiterate that the Bloc Québécois and the other parties worked well on this. I can vouch for the fact that my party, the Bloc Québécois, and the members of the Standing Committee on Industry, Science and Technology worked constructively together.

I sincerely believe that during the committee's hearings, all of the members worked hard to find a solution to the spam problem while taking into account the needs of companies that shared their concerns.

Anyone with an email address receives spam, emails that try to sell us products and offer us prizes and many other annoying things.

I do not know if anyone has noticed, but in recent months, there seems to have been a significant increase in the amount of spam. It makes me wonder whether companies have made changes to how they contact consumers.

Obviously, some businesses are concerned about how legitimate businesses will continue to contact consumers if Bill C-28 is adopted.

Bill C-28 clearly states that organizations will not require the express consent of their own clients to communicate with them in what can be deemed “existing business relationships”. However, to contact potential clients in order to market a good or service or to expand their activities, businesses may not directly contact a client by email without their prior consent.

Unsolicited electronic messages have become a significant social and economic problem that undermines the individual productivity of Quebeckers. Spam is a threat to the growth of legitimate electronic commerce.

Spam accounts for more than 80% of global electronic traffic, which results in considerable expenses for businesses and consumers. In light of this situation, legislation to protect electronic commerce is reasonable and appropriate.

On another note, some clauses of the bill are still problematic for the Bloc Québécois. We would like further information about the national do not call list.

A number of parallels may be drawn between the system proposed by Bill C-28 and the existing system for telephone calls.

The Bloc Québécois feels that the current list is doing the job, and it is used by millions of people. Compliance with the national do not call list required many companies to reorganize their resources and make a large financial outlay.

We realize that the Minister of Industry wants to keep the door open in order to replace the list with a new system. However, for the time being, it is a proven system that has been successful since it was implemented in 2008. At the committee hearings on Bill C-28 regarding electronic commerce, we were given verbal assurances by officials that it would not be abolished without public hearings.

Let us come back to Bill C-28. I believe we are all concerned about the way businesses obtain consumers' consent to transfer or pass on their contact information or email addresses to other organizations. The new legislation will enable us to reduce spam and go after unsolicited commercial emails.

To the Bloc Québécois, there is no doubt that the bill aims at protecting the integrity of transmission data by prohibiting practices related to the installation of computer programs without consent. It makes sense to avoid the use of consumers' personal information to send them spam.

Bill C-28 prohibits the collection of personal information via access to computer systems without consent and the unauthorized compiling or supplying of lists of electronic addresses.

We can hardly be against motherhood and apple pie. The Bloc Québécois feels that companies that want to send consumers information by email should get their consent first. It is a matter of principle.

This bill has a noble objective, but it will be a complex law to apply. I know the government wants to attack spam, and I agree with that. In my previous speeches and having had the chance to be part of the Standing Committee on Industry, Science and Technology, I personally have been convinced of the need to pass such a bill.

A number of countries have already passed measures similar to those in Bill C-28 and seem to have had positive results. The various laws passed in Australia, the United States and Great Britain to combat spam have apparently been quite successful.

Bill C-28 will make it possible to develop measures to dissuade as many people and businesses as possible from sending spam involving false representation, unauthorized software and exchanges of email address information.

This bill will help resolve many of the problems our constituents have raised and will further protect their privacy. Unsolicited commercial electronic messages have become, over time, a major social and economic problem that undermines the individual 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. In fact, spam accounts for over 80% of all global Internet communications. Thus, spam directly threatens the viability of the Internet as an effective means of communication. It undermines consumer confidence in legitimate e-businesses and hinders electronic transactions.

Basically, 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 accounts would be prohibited.

The only time 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. This is what we mean by “prior consent”.

I would like to close by reiterating that the Bloc Québécois supports Bill C-28. This proposed legislation has already been examined by a parliamentary committee, and it will help to increase the protection of computer systems and people's personal information.

As a final point, the Bloc Québécois is pleased to see that Bill C-28 takes into account most of the recommendations in the final report of the task force on spam, created in 2004. However, it is unfortunate that the legislative process took several years to produce this long-awaited bill to protect electronic commerce.

[Paule Brunelle, Bloc, Trois-Rivières, QC]

Mr. Speaker, this bill is the former Bill C-27. What strikes me is that it took four long years to come up with a bill, and the work is not over. We can see that technology is evolving at an alarming rate and that the legislative framework often lags behind. How can we counter this?

I would like to ask the member a question. When we talk about the web or the Internet, we cannot ignore its international aspect. How can we ensure that international agreements will be signed to make sure this bill remains useful?

[Larry Bagnell, Liberal, Yukon, YT]

Mr. Speaker, sometimes it is not a pleasure to rise and speak to bills, but it is a pleasure to speak to this bill as it will make Canadians very happy.

All of us are bombarded with annoying spam on our computers. The side effects can be dangerous to our computer system. It slows down legitimate commercial businesses in Canada. It is amazing that we have not yet dealt with this issue because it is an annoying and costly problem to Canadians and people all over the world. I am sure there will be support on all sides of the House to deal with this aggravating and at some times dangerous problem that essential computer systems face.

Twenty years ago a computer was not essential in carrying on daily life, but now it is involved in many things. It is even more important to people in the area I come from for things like distance education and health because they do not live in a big city so they do not have access to these specialties. Computers are essential. People need their computers for all sorts of things, like banking and personal communication. A fly in the ointment or a wrench in the works could gum the whole thing up. All of us would like this problem fixed as spam is distressing and dangerous.

I am excited about speaking to the bill. I am also excited about Parliament taking action on spam, which is unsolicited electronic email.

Many of us with computers know how dangerous and how much of a problem this is for Canadian consumers and businesses. In 2003 it was estimated that spam cost the economy over $27 billion worldwide. That is half the Canadian deficit. It is a monumental amount of money.

Since then, the problem has only grown worse. I am sure each of us in the House has thousands of these unsolicited emails gumming up the work of Parliament. I am sure that businesses across the country have this problem, as do individuals. More updated information will be forthcoming on how devastating spam actually is, and it is becoming worse all the time.

We are now looking at a far more serious problem, which would be corrected by the bill, and that relates to the issues of 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 the Liberal member for Pickering—Scarborough East tabled a private member's bill to make spam illegal. Unfortunately, the bill never made it to second reading.

However, based on the strength of Bill C-460, introduced in mid-2003 in the 37th Parliament, the Liberal 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 seriously growing problem.

That report entitled “Stopping Spam: Creating a Stronger, Safer Internet ”, was released in May 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 the 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, those emails we get with the funny titles that make it look like it is for us, or something critical or important, but it has nothing to do with that at all. The same product is being sold to us all over again.

The task force also recommended prohibitions on 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 a third, unknown party.

The committee recommended all these very important changes and I cannot imagine anyone in the House disagrees with those changes. The official opposition supports the bill as it follows through on the recommendations of the committee created by the Liberal government. Also the industry committee did such good work in the last Parliament before prorogation on Bill C-27. It made some very good changes to the bill to make it acceptable to more members of Parliament and a much better bill. However, much more needs to be done.

As I described earlier, as the world is changing, it is changing for businesses too and it is changing the way businesses do business and earn their revenue. They depend more on the Internet and computers. The bill would protect them and it would be a big enhancement to industry and small business in Canada. However, it also has to be careful not to deter the legitimate work and communication with consumers about their business products and services.

The minister talked about the consultation being done with business organizations and the fact that the committee and MPs can hear from those organizations and see whether more amendments need to be made other than the good amendments there were made on Bill C-27 to make it now into this new bill, Bill C-28.

Much 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 agreed that spam needed 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 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.

The legislation must meet the 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 protect consumers in business, but also to remain faithful to the act.

That is why some hope the act can be revisited on a yearly basis as technology evolves. It is something the Liberal Party may look to see the government amend or to look into at committee.

Moreover, the issue of text message spam is being aggravated obviously by yet another announcement of a major cellular service provider recently 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 anywhere. It will not help a lot if we just do the controls here because then we will be flooded by people sending spam to Canadians, gumming up Canadian businesses. They will start sending it from an out of Canada site.

I strongly point out that the legislation takes measures in Canada. There has to be an attempt to work internationally with other partners so we can also go after those companies and organizations that do this remotely from other countries, which do not have the same level of proposed enforcement or legislation. We have to do a lot of work on the international scene, assign the resources to do that work so the good work that is before us now, brought to us by the industry committee, does not dissolve in a flood of spam from 180 other countries around the world.

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. 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 past, that we have to ensure there is adequate support for the enforcement of the legislation, which is being complimented and being recommended here. That is a tall order.

Some members are probably aware about all the fraudulent emails people get. If they send them off to the place to deals with them, they get a message saying that they cannot give them an answer because they are so busy, they are so inundated. If there are not enough resources to deal with enforcing this, and the minister mentioned the agencies where those resources would be needed, then the legislation is not going to have much effect.

There is no point in bringing forth legislation if there is a reasonable chance 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.

Policing Internet traffic is incredibly difficult because any Internet crimes crosses jurisdictions and borders, territorial, provincial and federal. That is why in an attempt to control or stop spam, the report called on the government to create a central office that would coordinate anti-spam activities.

I hope the government will move diligently on that if speedy passage is given to this legislation.

Industry Canada is being designated as the official coordinating body. I would like to ask, perhaps in subsequent interventions from the government side, what kind of resources Industry Canada is being given to coordinate the other agencies that have responsibilities under this act such as the Privacy Commissioner, the CRTC and the Competition Bureau, as mentioned by the minister. When we talk about billions of emails, we need the resources for these agencies to deal with them and enforce the legislation.

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

It is extremely important that everywhere in Canada we can have confidence in legislation proposed by the government. I expect the Standing Committee on Industry, Science and Technology will deal quickly with the issues before us because it has already reviewed the bill and improved it substantially, and I congratulate the committee for that.

Central to this issue is if the government passes legislation and walks away from the issue, all these proposed initiatives, well-intended, well-researched and up to date, will fail.

I believe legislation to be correctly brought forward must ensure that we have proper resources and effective coordination so it is understood how this will take place.

The more rapid response we can have to correct this problem will ensure that those who see Canada as an opportunity and a target will find another place.

However, we also want to ensure that the other place is blocked. We simply want to put an end, where possible, to those practices which have as their origins the sense of undermining the credibility and the integrity of communicating and the effectiveness of the legitimate use of the Internet, which belongs to us all.

As many members know, spam emails also contain viruses, various dangerous bugs, that can turn people's private home computers, people who perhaps do not understand computers that much, into very dangerous machines that then send out all sorts of emails, disrupting businesses and other Canadians, their friends and the people they deal with on a business basis, ultimately costing millions of dollars.

It is simply fraud when they send emails and disguise them so one will open it. Once again, it could have the unwanted effect of having to deal with an email that was unsolicited and businesses and individuals have to buy more expensive equipment, perhaps try to use spam filters which, as we all know, does not work on everything. One needs to have bigger storage because there are more emails on the machine and it leads to many more problems than simply getting an unwanted email. One's name and information can then be sent to all sorts of other sources who will then start sending these unsolicited emails.

It is just a pyramid scheme that is very bad for everyone. It can also lead to the exposure of one's personal information. Every member of Parliament knows from a previous bill how dangerous and how proliferating this is in the world. With very little personal information, one can become a victim of crime, Many thousands of Canadians have already become victims of crime when their information has been provided.

These types of emails can ultimately be used by installing unwanted illegal software on one's computer without one knowing it when one of these emails is opened.

In 1993 and 1994, the Industry minister at the time, John Manley, talked about the great opportunities of the Internet as the super highway, as it was called at the time because it was the wonderful dawning of a new age. Unfortunately, that super highway 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, the legislation is timely, necessary and has a very reasonable opportunity to pass.

In the rural and northern areas, our access is sometimes through limited pipes, whether it be hard wire or through satellite. Expanding the usage by these huge amounts of unwanted, wasteful, almost illegal emails makes it so people do not get access or have very slow access and it can shut down the access that other people have in rural and northern areas.

The government must follow up on the legislation with real action and real enforcement resources. It must actively engage all partners everywhere in industry internationally. It must continue the consultation process and develop longer term opportunities to combat spam.

What plan does the government have in moving forward to engage industry partners and 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, in fact, that 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 effectively the legislation would be, particularly from the point of enforcement.

What plan does the government have to work with international partners in building a strong international effort to combat spam? Spam can be incredibly destructive. Besides consuming time and band width, spam is a delivery vehicle for malware, programs that access one's computer without authorization and can do a number of dangerous 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 we could not have contemplated three, four, five years ago but it is currently taking place. Many consumers and many constituents have talked to me about this and 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 the times as the Internet and electronic information becomes more sophisticated.

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

Therefore, I call upon all members to support the bill to go to committee and get it through. I am sure all Canadians and businesses will be very happy to remove this aggravating and dangerous problem.

[Tony Clement, Conservative, Minister of Industry]

moved that Bill C-28, 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, be now read a second time and referred to the Standing Committee on Industry, Science and Technology.

Mr. Speaker, I am pleased to rise today to begin the second reading of Bill C-28, Fighting Internet and Wireless Spam Act.

Hon. members will no doubt recall that this bill was debated extensively in this House and the other place in the last session as Bill C-27. Now it is Bill C-28, so we have moved up at least one notch in the world, anyway.

I should inform members that this bill has not changed substantially since the last session and remains as it was following its review by the House industry committee at that time.

At the outset I would like members to consider the bill in a larger context, as part of an overall plan to help put Canada at the forefront of the digital economy, in part through modernizing our framework of laws for the digital age.

Soon we expect to bring up to date other important legislation, including the Personal Information Protection and Electronic Documents Act, and of course, the Copyright Act. Together these bills will contribute to improving cyber security practices by consumers and industry, to promote trust and confidence in online commerce.

As we know, the Internet has become the central nervous system for the digital economy. It provides a common global platform for communication and commerce. Its use by businesses and consumers has led to the emergence of a borderless international marketplace.

Since 2000, online sales for Canadian companies have increased nearly tenfold. Ten years ago, online sales in our country were less than $7.2 billion. In 2007, sales reached almost $63 billion.

Businesses and consumers have grown to depend on the Internet. They count on it to be safe and reliable. Online security threats can erode the degree of trust and confidence in the Internet as a safe and reliable environment for electronic commerce.

Our government is committed to building the necessary confidence. We understand what a harmful economic impact spam and other online threats can have on the online economy. We know that the government has an important role to play through legislative measures.

Threats to the online economy include more than just spam. They include spyware, malware, computer viruses, phishing, viral attachments, false or misleading emails, the use of fraudulent websites, and the harvesting of electronic addresses.

These threats are not just nuisances. Some are fraudulent, some invade privacy, and some are used to infect and gain control over computers. It is estimated that spam costs the worldwide economy $130 billion a year.

The bill before us contains important provisions that will protect Canadian businesses and consumers from the most harmful and misleading forms of online threats. It improves the privacy and economic security of Canadians in the electronic environment. It offers a host of clear rules that all Canadians will benefit from. It will promote confidence in online communication and electronic commerce.

The bill before us stakes out new ground in Canada. Currently we are the only G8 country and one of only four OECD countries without legislation dealing with spam. This bill will rectify that situation.

In developing the bill, we have been able to incorporate the best practices of other countries that have launched similar efforts.

We have seen, for example, how effective the private right of action has been in combatting spam in the United States. Under the bill before us, businesses will be able to sue spammers who use their brand to lure unsuspecting customers to divulge private information online as a result of unsolicited email. The bill enables class action suits by individuals who have been spammed or whose computers have been subjected to spyware or botnets.

We have learned from approaches taken elsewhere that a civil administrative regime is more responsive and therefore more effective than using the criminal law to combat spam. Other countries such as Australia, the United States and Japan use regulatory authorities rather than law enforcement to enforce anti-spam legislation. With this bill, Canada will have a comprehensive enforcement regime enforced by existing specialized agencies rather than the police.

What enforcement agencies will be involved? The new law will be enforced by the CRTC as Canada's communications authority, by the Competition Bureau as the federal agency that deals with false or misleading commercial messages, and by the Office of the Privacy Commissioner, the agency tasked with the administration of PIPEDA. The bill specifically enables these agencies to work and share information with each other, as well as work with and share information with their international counterparts.

The CRTC will enforce the provisions against sending unsolicited commercial messages. It will also have responsibility for the provisions that prohibit the altering of transmission data without authorization and the unauthorized installation of computer programs.

The Competition Bureau will address false or misleading representations online and deceptive marketplace practices such as false headers and website content.

The Office of the Privacy Commissioner will address the collection of personal information without consent through unauthorized access to computer systems and the unauthorized compiling or supplying of lists of electronic addresses, commonly referred to as address harvesting.

The bill provides that both the CRTC and the Competition Bureau can seek what we call “administrative monetary penalties”, AMPs, against violators. The maximum AMP for the CRTC is up to $1 million per violation for individuals, and up to $10 million for businesses.

The Competition Bureau, through application of the Competition Tribunal, may seek AMPs under the current AMPs regime in the Competition Act. That regime specifies AMPs of up to $750,000 for the first violation and up to $1 million per subsequent violation in the case of individuals, up to $10 million for an initial violation by a business and up to $15 million per subsequent violation.

These AMP regimes demonstrate that we are serious about driving spammers out of Canada.

Industry Canada will have oversight responsibilities and will ensure that the work of the three agencies is coordinated. A spam reporting centre will be established to help the three enforcement agencies in their investigations and to give businesses and consumers a one-stop shop where they can report spam and other online threats.

I would remind hon. members that after wide-ranging discussions in this place and in the Standing Committee on Industry, Science and Technology we were able to pass the predecessor, Bill C-27, as amended, with unanimous consent at third reading during the last session.

The amendments that have been incorporated into this bill, based on the thorough review done at committee for the previous bill, fine-tune this legislation so it strikes the right balance between protecting consumers and giving them control over their inboxes, while effectively enabling online commerce.

Hon. members may recall that we took a careful look at how to ensure that companies that use email to keep in touch with customers do not inadvertently find themselves in violation of the law. The purpose of the bill, after all, is not to limit legitimate online business. It is to promote electronic commerce by increasing confidence in the use of the Internet to carry out business transactions.

The implied consent provisions were expanded to include the conspicuous publication of an electronic address such as a website or a print advertisement, provided that the sender's message relates to the business or office held by the recipient. This is consistent with provisions under PIPEDA and accepted in the current code of ethics of the Canadian Marketing Association.

Under the bill, no commercial electronic message can be sent without some form of expressed or implied consent. Implied consent is also extended to existing business and non-business relationships. We have, I believe, preserved the ability to extend by regulation the situations in which it is reasonable to believe that consent to receive commercial emails is to be implied.

Hon. members will also remember that after the committee hearings, the bill was amended by the committee to ensure that legitimate businesses can periodically install updates to their software and that businesses and consumers can continue to use navigation features on the web.

The effect of these amendments was to make a good bill even better. Each of these provisions has been brought forward in the bill before us.

Nonetheless, I want to point out that in addition to these changes made at third reading during the last session, we also incorporated a number of technical changes and clarifications to the bill before us today. Two changes in particular are worth going over in greater detail because they are more important.

The first deals with the order of precedence of two laws that affect privacy: the bill before us; and the Personal Information Protection and Electronic Documents Act, PIPEDA. Hon. members may be aware that PIPEDA contains a primacy clause that otherwise ensures its provisions take precedence over subsequently enacted bills when dealing with personal information or consent. This primacy provision ensures that the efficacy of PIPEDA is not undermined by other legislation with weaker consent requirements.

Compared with PIPEDA, the bill before us has stricter rules regarding consent when dealing with personal information respecting email addresses. Its rules are also more strict when dealing with consent to the receipt of commercial messages. This bill must take precedence.

Accordingly, a new clause 3 clarifies that in the event of a conflict between the provision of this bill and a provision of Part 1 of PIPEDA, the provision of this bill, the Fighting Internet and Wireless Spam Act, would take precedence. Hon. members, I should add that the Office of the Privacy Commissioner supports this amendment.

The second amendment I wish to discuss responds to an issue raised concerning the former Bill C-27. An amendment was added before the bill went to the committee in the other place, but Parliament was prorogued before it could be discussed there. It involves provisions of PIPEDA that prohibit the collection and use of personal information through unauthorized access to a computer system.

Our goal is to increase the protection of personal information stored on personal computers or private business networks. The bill requires private sector firms and investigators to obtain consent to collect that information. It includes a provision that private enterprises do not have the right to collect personal information through access to a computer system “without authorization”. The main focus of the amendment is the term “without authorization”.

In drafting the bill, it was never our intent to limit the ability of private investigators and search engines to access and collect personal information that is already available to the public on the World Wide Web or other similar networks.

Several witnesses have expressed concern that the term “without authorization” clouds the issue. It leaves a great deal to interpretation by the courts. For example, persons who post terms of use on a website could easily render the collection of information from that site “unauthorized”. This could leave industry at risk of civil lawsuits by those seeking statutory damages under the private right of action contained in this bill.

We have consulted with privacy advocates, telecommunications carriers, search engine companies, copyright-dependent industries, and other stakeholders. They agree that an amendment is necessary. As a result, we have changed the wording so that instead of “without authorization”, the bill now reads, “in contravention of an Act of Parliament”. That is, there will be no exception to PIPEDA's consent requirements for: “the collection of personal information, through any means of telecommunication, if the collection is made by accessing a computer system or causing a computer system to be accessed in contravention of an Act of Parliament”.

I believe hon. members will agree that this amendment respects the spirit of the bill as originally passed in this House in the last session, and improves upon it.

Finally, we have travelled a long journey toward bringing anti-spam legislation to Canada. From the work of Senators Oliver and Goldstein to the recommendations of the Task Force on Spam, there have been many different sources of inspiration for this bill. It was very close to receiving royal assent in the last session, and I hope we can move it through this session quickly.

This is a bill that will benefit all Canadians who use the Internet, but it is also a major piece of a much bigger agenda to put Canada in the forefront of the digital economy. If we get this right, we will do more than simplify participation in the digital economy; Canada will be a leader.

I urge hon. members to join me in supporting this bill.

[Greg Rickford, Conservative, Kenora, ON]

Thank you, Mr. Chair.

Thank you to the witnesses.

I, too, would like to congratulate you on your hard work, particularly in eliminating the backlog. Congratulations on that.

Just as a reminder, I noticed that you're doing consults in three cities, in Toronto, Montreal and Calgary. Of course, we'd always welcome you in the great Kenora riding, and it would be good, unlike previous governments, to pay some attention to some of the rural and remote areas that can no doubt make a good pitch on this issue.

I want to talk about estimates. Your report on priorities and planning--hereinafter RPP--indicates proposed increases in planned spending this year related to the implementation of the Electronic Commerce Protection Act. Your office was recently before us on the supplementary estimates (C) for 2009-10 with, I believe, a $100,000 item that was also linked to this implementation.

My questions are as follows. I'll just put them out there.

The Electronic Commerce Protection Act is Bill C-27 from the second session of the 40th Parliament. As of the date of publication of your RPP, it has not been reintroduced into the House during the third session, so how are you calculating implementation costs over a three-year period for a bill that has not yet been introduced?

Second, in your testimony to the committee on the supplementary estimates (C) for 2009-10, when you were here in March, you stated that the $100,000 allocated for this item has already been spent. Is this your projected future spending for the same kinds of activities on which that $100,000 was spent or for something else?

Finally, do you plan to include requests for these extra amounts in the upcoming supplementary estimates later in this fiscal year?

I'd be happy to repeat any of those questions if you didn't get them.

[Elizabeth Denham, Assistant Privacy Commissioner, Office of the Privacy Commissioner of Canada]

Merci.

Good morning, Chair, and members of the committee.

Good morning, Mr. Chair and members of the committee.

It's very nice to be here again and see some familiar faces. As you've just said, I am accompanied by Tom Pulcine, our director general, corporate services, as well as Steven Johnston, our senior security and technology advisor. Steven is available in case we get into some IT technicalities that are well beyond my knowledge.

I understand that we're here to discuss supplementary estimates (C) relating to the OPC's oversight role in relation to anti-spam legislation, referred to in the last session as Bill C-27, and more commonly as the Electronic Commerce Protection Act or ECPA.

I thought it might be worthwhile to take a couple of minutes to put our role regarding that legislation in context. Would that be helpful, Mr. Chair?

I'm afraid that with the somewhat short notice our office didn't have time to write and translate a statement, and I confess that I was much more up to speed on the content of this legislation when I appeared before the House industry committee in June. As of this morning, this legislation has not been reintroduced in either House, but I am speaking now as though the legislation will be the same as that passed by the House last November.

As many of you know, the overarching purpose of ECPA is to combat spam in order to provide for a safer Internet. Spam is a serious problem that has a significant impact on the economy. I should point out that Canada is currently the only G7 country without such legislation. Once passed, the legislation would involve a triad of federal agencies in oversight: the CRTC, the Competition Bureau, and the Office of the Privacy Commissioner.

Our role will be to investigate the unauthorized collection and use of personal information from e-mail addresses through a variety of different techniques: harvesting, dictionary attacks, and malware or spyware. I'll be happy to talk about these later if there is interest.

The legislation doesn't change our existing enforcement powers, and we don't expect a significant increase in new complaints to our office under this law. However, we need to gear up incrementally. We need to explain this new law to our stakeholders and the public, and undertake compliance education. The investigations themselves are likely to involve increased technical complexity, as well as collaboration with domestic and international enforcement bodies, and a need for legal enforcement action in some cases.

The legislation also imported some amendments to PIPEDA that are familiar to many members of this committee. Number one is to give the commissioner discretion to decline to investigate a complaint, discontinue a complaint or refer it elsewhere, and allow for collaboration with and the exchange of information with provincial and foreign counterparts who oversee and enforce laws that are similar to PIPEDA. These are general amendments to PIPEDA and would therefore apply to all of our activities, not just those activities related to spam.

In this fiscal year of 2009-10 we have estimated $100,000 in operating costs, anticipating that this bill will receive royal assent in this fiscal year. That amount relates to communication, education, and awareness activities.

Canadians need to be aware that our office will take complaints related to spam through dictionary attacks, spyware, or other methods. We need to prepare for public inquiries and inquiries from business and other government agencies. So we've been busy drafting materials and have developed internal training materials for our own staff. We've also really ramped up our technical expertise that will be needed for investigations dealing with spyware and malware under ECPA. And we've invested in software for these online investigations.

Perhaps that's enough to give you some context for our request. I'm happy to answer any questions.

Merci.

Electronic Commerce Protection Act

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Mr. Speaker, Bill C-27 is the spam bill. We are thankful that it is finally back in the House because the NDP industry critic, the member for Windsor West, indicated that he despaired that it was ever coming back here. We know how important it is.

Should the bill pass here in the House, which it seems likely to soon, get through the Senate and become law, what is then required? I know my colleague from Elmwood—Transcona asked another member earlier about the kind of advertising program that is necessary to ensure that the public are aware of this legislation and how it would affect them, but also how businesses would be aware of the legislation and the effect that it would have on their business and the way they did business.

I know he was just asking a question about how this would affect real estate agents, for instance, who go back to their former client list and try to use it again as they pursue business. I wonder if he can comment on that aspect of what is necessary concerning this legislation.