Bill C-28 (Historical)

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 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, 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.

Fighting Internet and Wireless Spam Act

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

Mr. Speaker, I am uniquely qualified for a short question, as my hon. colleague points out, and I thank him for his compliment. Perhaps he should send it in an email.

I would like to address the situation, as he talked about earlier, when it comes to the proliferation of technology and how flexibility must be built into this. When we started in 2004-05, it was very stringent as to what it was. Now the proliferation is so great, with pictures and video messages.

How would he, as a member of Parliament, put this out to the public, especially when it comes to the most vulnerable of groups, on how they would deal with certain types of messages and how bad they could be in cases of spam?

[Glenn Thibeault, NDP, Sudbury, ON]

Mr. Speaker, my hon. colleague brings up a very valid point. We are talking about protection. How do we let the people know that they have their rights and their responsibilities as well? When we are responding to an email, we have to take some responsibility and understand that whole process. If we are sending an email, something is happening there. There is the ISP and the telecommunication issues that we were talking about earlier.

We need to ensure we have some very strong marketing plans in place, whether it is advertising or whatever, and we need to do something very quickly to ensure we can protect all of those involved.

[Paul Dewar, NDP, Ottawa Centre, ON]

Mr. Speaker, I too rise to join members in my caucus and all parties in the House to support the idea of Bill C-28. It is important to protect consumers and those who are affected by what is really more than just a nuisance, and that is spam.

I should also note that it is probably the first time the word “spam” has been debated so fervently and thoroughly. Most people would compare this to affordable food, but this is in fact a widespread nuisance, a deterrent to the free access of information. Some people use technology not only to create a nuisance, but also to scam people. It is not just about stopping spam; it is also about stopping scams.

We have had enough time with the new technology known as the Internet to understand that there needs to be a balance between access to information, that is, people being able to decide what they want to put online, and protecting people from being abused by the information on the Internet.

It has been mentioned by my colleague from Sudbury that this bill looks familiar. It was around before with one digit less than the one in front of us, Bill C-27, which was in the last Parliament before it prorogued. It is unfortunate that we had to wait so long to get this legislation going, because it is affecting many consumers right across the country. We must also look at how we are measured by our partners: we are the only G7 country without legislation on this matter. Clearly, the time for it is now, and we in the NDP welcome it.

I want to acknowledge my colleague from Windsor West. He has done a lot of work on consumer protection and anti-spam legislation, both on the legislation in front of us and on previous legislation. I want to acknowledge his work and thank him.

The technical term for spam does not roll off the tongue quite as readily as the abuse of electronic messaging systems. This includes most broadcast media, through which digital delivery systems are used to send unsolicited bulk messages indiscriminately. While the most widely recognized form of this is email spam, the term applies to other abuses like instant messaging. We have seen a lot of that lately by news groups that throw out spam.

Search engine spam is probably one of the most ubiquitous in that it is able to take the information from surfing the net, synthesize it, and throw the history of what one has been surfing back with advertisements and spam. There is software to block it, but that costs money. There is also spam in blogs and something called WikiSpam. There is spam for pretty much every aspect of our online culture these days.

We had this challenge before, and I see it from time to time with our faxes. There is a need to have proper regulation, not only to protect consumers but also to ensure that international scammers are curtailed and held to account. We must remember that this is not just a domestic problem.

Often these spam organizations and boiler rooms are looking for low-hanging fruit. They are looking for jurisdictions where there is not sufficient regulation. It goes without saying that Canada is wide open for this. It is analogous to how people use tax havens: we have not regulated enough to make sure our regulations are adequate for the 21st century.

It is a real problem and a costly one. The longer we have less spam regulation, the more it will cost businesses, individuals, and institutions to deal with it.

Spam results in large cost overheads for major corporations and small businesses. Consider the bandwidth problem and the net throttling that has gone on these last few years. There is less capacity for businesses, homes, and institutions to receive information, because of the spam being carried through the bandwidth. That means there are traffic jams on the Internet, because there is all this extra traffic in spam, which need not be there.

There is the cost of contacting each additional recipient. Once the spam has been constructed and multiplied, it proliferates. Trying to get to the source of it is a cost for people. Instead of chasing down who is spamming them, they could be doing something else.

Generally, there is also a social cost when we consider some of the spam that is put out. Some of it is offensive to families.

My colleague from Sudbury talked about having homes wired up with access to a computer. Some of the spam is offensive, either because of the nature of the spam, the pornographic content, or because certain messages convey values contrary to ours.

This is not just commercial. It is not just about selling us things we do not want. It is also about offensive material that costs us not just financially but socially as well.

[Ed Holder, Conservative, London West, ON]

Quit stalling and let it go to the committee.

[Paul Dewar, NDP, Ottawa Centre, ON]

Sometimes there is vocal spam too. We get it in the House from time to time, and you will note it, Mr. Speaker, just across the way today.

It is a matter of making sure that we understand the costs: social, financial, and otherwise. We have to ensure that the costs are not borne only by the consumer.

We see this with regulations. Governments of every stripe will bring in legislation, and then it is pushed down to other levels of government or to consumers, who have to pay the bill to ensure that the regulation is brought forward. This is something we have to pay attention to. People are struggling to get by these days, and computers are like telephones were when I was growing up. They are a tool that we all use, and we must make sure that it is not going to be an added cost to consumers.

We have seen Internet providers take an extra couple of dimes or dollars out of people's pockets these days. This is something we have to pay attention to as we bring these regulations in. We need to ensure that this is not just an opportunity for providers to charge the consumer more.

When we look at the bill in committee, we will want to ensure that it covers what concerns consumers, businesses, and institutions. We need to make sure that we can rid ourselves of spam, that the costs are not going to be borne by consumers, that we get this right and support the enforcement of the regulation. It should not be just another burden on other levels of government, and the CRTC should be at the front of this to make sure it happens.

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

Mr. Speaker, I appreciate the member's comments about the cost of crime being taken out on the consumer. That is a valid point.

With respect to deterrence, the maximum penalty as proposed in Bill C-28 for an individual is $1 million, and the maximum penalty for a corporation or other organization is $10 million. They go by violation. If the regulations were to designate spamming as a violation of this kind, a business that has been spamming for 10 days could conceivably be required to pay up to $10 million.

Would the member comment on whether this is an appropriate amount for deterrence? How should we go about enforcing this as a stronger measure for the public?

[Paul Dewar, NDP, Ottawa Centre, ON]

Mr. Speaker, I think this is an absolutely critical question.

If the notion of deterrence is going to be embedded in legislation, it must be effective. I think the numbers are fine. However, let us look at the industry itself. What is the evidence? I think this would be an important study for the committee. We could find out how much money is being garnered from corporations and outfits that are in the business of spamming. There are many and the business is very lucrative. Sometimes assigning an arbitrary number is difficult.

We should be looking at the ability to pay as well. It should be a sufficient deterrent along with assigning numbers. But it should not be straightjacketed. Some outfits make a lot more than what is contemplated in the legislation. I would hate to have them get off scot-free. We have seen that before. If it is something that is not seen as a major cost, it will continue.

We want to make sure we get this right. As to the numbers, this is something the committee should hear about, particularly from other jurisdictions that have similar legislation.

[Paul Szabo, Liberal, Mississauga South, ON]

Mr. Speaker, I would like to follow up on the theme of regulations.

I am not sure if the member is familiar with this. Subclause 11(5) refers to sending a communication and installing some information or a program on the computer. It lists the number of items they should not be able to do, such as changing or interfering with the settings, preferences, et cetera.

However paragraph (g) includes, “performing any other functions specified in the regulations”. It is very simplistic. In my experience on the scrutiny of regulations committee, this is close to being an inappropriate clause, because the items that would be in the regulations would not have an enabling provision in the act.

I am not sure if the member shares my concern, but I hope that the committee members will raise this when it gets to committee.

[Paul Dewar, NDP, Ottawa Centre, ON]

Mr. Speaker, I appreciate my colleague's acumen in regulation oversight.

The joint committee of both the Senate and the House will ensure that what we think we have passed and enacted actually happens.

I think what the member has pointed out is something that needs to be looked at. There are three key requirements in the legislation: consent, jurisdiction, and form.

The law contemplates establishing form requirements for those who send commercial electronic messages, which include the ID of the person sending the message and the sender's contact information. With regard to the unsubscribe mechanisms described in clause 11, it must allow for an easy opt-out.

Is that part too general? I think the member is probably on to something that we should look at in committee.

[Mario Silva, Liberal, Davenport, ON]

Mr. Speaker, I would like to split my time with my colleague, the member for Don Valley East.

I am pleased to stand in support of Bill C-28, which was put forward by the Minister of Industry.

This is an important issue. The bill looks to enact the electronic commerce protection act, which would prohibit the sending of commercial electronic messages, in other words, spam emails, without the prior consent of recipients.

We have spoken quite a lot in this House about spam and this particular legislation. I am not sure if anybody has spoken to the origin of the word “spam”, but according to what I have managed to find on the Internet, “Spam” traditionally has referred to a pork shoulder and ham product. That is not what we are referring to here. Today's spam is a nuisance which all of us, unfortunately, receive as emails.

Twenty years ago this was not an issue. Today our lives are guided by the use of the Internet and email messages. I do not think any of us could manage our day-to-day affairs without a computer. All members of the House probably use the Internet, but if not, certainly their staff does. It is next to impossible to communicate with our constituents effectively without the Internet.

Spam is a nuisance. It significantly affects individuals, governments and companies. We must look at this legislation very seriously.

Members have raised legitimate issues about this legislation and what needs to be changed in order to make this legislation more effective. However, the proper place to do that is at committee. All of us probably will support sending this bill to committee so that the committee can hear from the different stakeholders to ensure that the legislation is appropriate and timely and that it would in fact address this very serious issue of spam. Spam is not only a nuisance but it is also used by criminals to wreak havoc on people and companies. Recently, a Quebec judge upheld a United States award of $1 billion against a spammer who used Facebook to send over four million spam messages. It is important that the courts and government treat this issue seriously.

The bill would also prohibit the use of false or misleading statements that disguise the origin or true intent of the email, the installation of unauthorized programs, and unauthorized collection of personal information emails. The bill would also establish fines for these violations, to a maximum of $1 million for individuals and $10 million for businesses. The bill would establish rules for warrants for information during investigation, and injunctions on spam activity while under investigation.

Bill C-28 would establish the private right of action, allowing individuals and businesses the ability to seek damages from the perpetrators of spam.

This bill is long overdue and we are happy to support it.

We have been told that up to 80% of email traffic globally is spam, which means that only about 20% of email traffic is legitimate communication taking place between individuals and businesses. These numbers show that not only is spam a significant problem, but it is a growing menace to everyone who uses the Internet or email.

While this bill is a good start, we must also work with other countries to address this problem. The Internet is international and there must be an international solution to spam as well.

The leading source of spam this year has been the United States. Almost 19% of the spam sent around the world has originated in the United States. India is second with 8% and then Brazil with almost 6%. Canada must work with these nations and all countries to address spam-related issues.

It is also important to recognize that anyone can be a target for spammers, including young people. It has just been reported that in advance of the release of the new Harry Potter movie in mid-November, spammers have been busy at work targeting young people. The last Harry Potter movie was of so much interest to young people, spammers are promoting free tickets, but once young people enter their personal details, they become the tools of the spammer. Anti-virus companies are warning computer users to be very careful of such online offers.

I have received many emails from what appears to be my bank telling me that I should register my credit card online because of some issue. When I contacted the bank to tell it what was happening the bank was very alarmed.

Individuals are being fooled into giving out their credit card numbers in response to what they think is a legitimate email from their bank. Because the email contains the bank's corporate logo and detailed information, people think the email is official, but it is really somebody trying to get private information, hack into a bank account and take out money.

This criminal activity is taking place on a large scale globally. We are not looking at a small menace. We are looking at a serious threat to our economic well-being and a serious threat to the safety of people. This is an issue of great importance. I hope that members will see it for what it is, a very serious issue that needs to be addressed by Parliament.

Anyone is fair game as a target. Spammers manipulate people, and in the case I mentioned, young people who are anxiously awaiting the last instalment of the Harry Potter movies.

Another important aspect of the changing dynamics of spam is that the use of spam is becoming increasingly more automated. The result of greater automation is the ability to target more diverse computer users in greater numbers and in all corners of the world. The use of spam in such circumstances is growing.

An associated aspect of spamming is theft of information and related issues.

A major development that has been reported in the new Kroll Global Fraud Report is that for the first time, physical theft as a criminal act has been overtaken by cyber theft. Criminals are using with increasing effectiveness the vulnerability of the cyber world.

Even Microsoft recently confirmed that two of its network devices had been used illegally to forward spam to thousands of users. The fact that such a large and vigilant company can be victimized is further proof of the seriousness of the problem.

The cost to fight spam is in the billions of dollars every year. This is money that could go toward paying bills, growing companies and supporting other more productive causes.

The bottom line is simply that spam is way beyond an inconvenience. It is a vehicle for criminal activity. It is a means to manipulate and cause great harm to individual users. It has a serious impact on businesses financially and in terms of their reputation. Spam puts our young people at risk. With all of this in mind, it is essential that we take action here in Canada to address this issue.

I am pleased that the government has incorporated into this bill most of the work of the previous Liberal government in this area. Back in 2004-05, the Liberal government established an anti-spam task force which came forward with recommendations. Some of these recommendations are in the bill. The task force recommended prohibiting the sending of spam without the prior consent of recipients; prohibiting the use of false or misleading statements that disguise the origin and true intent of the email; prohibiting the installation of unauthorized programs; and prohibiting the unauthorized collection of personal information or email addresses.

We will support this bill now and hopefully make any needed changes at committee.

It is important for Canadians that we take action to challenge this growing problem. It is also important for people in all countries that we work together in order to hold those who commit these acts responsible for their actions no matter where they live or operate.

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

Mr. Speaker, by way of illustration my colleague brought up some very good points, especially concerning a theme that we touched on earlier regarding the public perception of what is spam and how some people, especially the most vulnerable, are not familiar with spam material that comes through emails, Facebook and other types of medium and how to recognize what it is. He provided great illustrations about his bank and credit card information, as well as the Harry Potter movie and kids. It is a way of luring people into a very vulnerable position. It is a massive global effort.

Would he comment on the need to illustrate these examples to the public and how we can go about doing this in addition to passing the legislation and regulations that will follow?

[Mario Silva, Liberal, Davenport, ON]

Mr. Speaker, all of us recognize that we are faced with a very serious issue. It is not about getting an email that is a nuisance. Many times it is about criminals taking advantage of individuals in our society.

I agree with the hon. member. There is no question that people need to be more aware about the problem. We need to ensure the government is doing everything possible to get the message out to individuals not just with tough laws but also through the enforcement of the laws. Someone on the Liberal Party's task force said that resources are also needed. We need the resources to be able to deal with this issue effectively. Law enforcement needs the resources not just from the legislative perspective but also the financial perspective, to deal with this very troubling menace that is causing havoc in our society.

[Paul Szabo, Liberal, Mississauga South, ON]

Mr. Speaker, the issue of communications purporting to be from financial institutions and bearing their logos I see as a problem. I have received many of those. I have provided the bank with copies of what I have received. I do not know if the member has experienced this but the banks have said that they see them all the time and there is not much that they can do.

That is where clause 61 of the bill comes in. We are dealing with something that originates offshore. A lot of the spam originates offshore and that is the problem. If there is no integration of laws between Canada and foreign jurisdictions, then our laws are not going to be worth very much in terms of dealing with the real threats to personal information and security of information.

I wonder if the member believes that the bill is sufficiently robust with regard to pursuing international agreements to ensure compatibility of the laws and the purpose of the laws.

[Mario Silva, Liberal, Davenport, ON]

Mr. Speaker, I congratulate the hon. member for Mississauga South. He has spoken quite eloquently to this issue a number of times and to the importance of this legislation and getting it right.

He is absolutely right that it is not just a question of acting locally. We also have to act globally to bring all players and international partners onside. In many ways an international law is needed as well to combat this growing problem.

It comes down to whether there is political will. Will the government go beyond this bill and raise these issues at a global forum, the G8, the G20, or the UN? We need to take whatever action we can to get concrete global action to deal with the issue of spam. It is a serious problem. Criminals use it to attack vulnerable people. We have to see it as a criminal act and we cannot do that, as the member said, because a lot of the activity takes place offshore. We need to have our partners onside. We need global action, but we also need political will from the government in order to do that.

[Yasmin Ratansi, Liberal, Don Valley East, ON]

Mr. Speaker, I am pleased to speak to Bill C-28, the electronic commerce protection act. The purpose of the bill is to deal with the issue of spam. The act would prohibit the sending of commercial electronic messages, spam, without prior consent of the recipients.

Spam represents about 60% to 80% of Internet traffic worldwide. It is a serious problem for Canadians and Canadian businesses. In recognition of the seriousness, the Liberal government in 2004-05 established an anti-spam task force that came up with the following recommendations.

The Liberal recommendation called for the government to introduce legislation that would do the following: prohibit the sending of spam without the prior consent of recipients; prohibit the use of false or misleading statements that disguise the origins or the true intent of the email; prohibit the installation of unauthorized programs; and prohibit the unauthorized collection of personal information or email addresses.

I am pleased to see that the Conservative government, through Bill C-28, is enacting all of those recommendations.

Twenty years ago a computer was not essential in carrying out our daily duties. However, now it is important to everyone, be it businesses, individuals, corporations, non-profit groups, hospitals, students or seniors. Our parents and grandparents use it. It is a mode of operation. It facilitates and eases transactions. People like to do their banking and bill paying on the Internet.

However, the ease of using computers and sharing information creates another problem of its own: the unwanted advertising, misinformation and potential threats. We all know too well the consequences of spam because it brings with it viruses and worms. In 2003, Canadian consumers and businesses spent approximately $27 billion to develop a phishing program that would detect fraud and shield businesses from attacks. This is a critical issue and the problem has grown worse since 2003. I am sure we have all had first-hand experience with spam.

I was looking at my own email and noticed that someone had sent me an SOS notice. I wondered who the notice was from. It saw that it was from a constituent of mine. I could not imagine that a constituent's email had been compromised. There was a note asking for help as the constituent was stuck in some foreign land. I had to wonder how a person was able to access a personal email and then send me an SOS note.

The good thing is, if we know our constituents, we can verify who they are. However, for unsuspecting people, if somebody were to send an SOS notice and ask for funds, they might think they know the person and send it. They may not know that person's email has been compromised.

This is a huge problem for all of us. It is important that as a collective we address the issue. Sometimes we think we have secure accounts but we often get unsolicited and junk mail. As I mentioned, I am sure no one can attest to the fact that they have never received junk or spam mail. The junk mail on its own may not be risky if one knows what to do with it and assign it to a junk folder, but there are people who do not know what to do with it and respond to it.

A classic example is when we are told that our Internet has been compromised and that we need download a program. We download the program and our computer is frozen because of a virus. The people who sent the program now want payment for a service that was not needed in the first place. There are a lot of problems going on.

The worms and viruses that can enter a system are problematic for Canadian businesses, Canadians, banks and just about everyone. We just heard that people tend to receive emails that appear to be from their banking institution, financial institution or insurance company asking them to verify information. If people are naive enough to respond to the email, they are now giving information to the person who is trying to hack their system, which can cause people a lot of problems.

Therefore, to address this issue in 2005, the Liberals released a report entitled, ”Stopping Spam: Creating a Stronger, Safer Internet”. As was mentioned earlier, the task force made many recommendations. Among those were the prohibition of sending unsolicited email or the use of misleading statements, funny titles, products, et cetera These are important changes and I do not think anyone in the House would object to what Bill C-28 proposes.

I am sure that, like me, many members of the House have received numerous complaints from their constituents on the issue of spam. The issue has compounded because of things that are now delegated to outside of Canada. When people are contracting their telephone services or banking services outside of Canada there is no control over it.

The government's ability to control or combat spam is not just about introducing legislation but also about working with world governments and organizations to develop an international strategy for reducing this ongoing burden of spam.

Internet policing is difficult as the traffic is humongous. We know that 60% to 80% of the Internet traffic is spam. This sheer volume of messages challenges the capacity of Internet providing services or legitimate business to do their business. They have to put in all sorts of firewalls, et cetera.

If the government is serious about introducing legislation and the Industry Canada's committee will be reviewing this legislation, it is important that we move quickly to enforce the legislation. Industry Canada cannot do it on its own without having the necessary resources. I would like know what resources the government will give Industry Canada to ensure an effective corrective solution.

It is extremely important for people everywhere in Canada to have confidence that the legislation provided by the government will be effective and that the sanctions are there. I believe that any legislation brought forward must ensure that we have proper resources and effective coordination.

The more rapid a response to correct this problem would ensure that those who see an opportunity for Canada as a target will find another place. However, we do not want them to find another place because that other place is where we do our business as well, in banking, financial services and whatever we do. It is a global place and we do our business globally.

I hope we will work with the international community to ensure we have a reduction in spam. I hope all members will support the bill, that it will be sent to committee for further review and that it will provide fast relief for Canadians.