Industry Committee on June 9th, 2009

[The Chair, Conservative, Michael Chong]

Thank you, Mr. Van Kesteren.

Thank you, Minister.

Mr. Masse.

[Brian Masse, NDP, Windsor West, ON]

Thank you, Mr. Chair.

That's one of the things we actually added. We augmented the do-not-call list for the review as well. Especially as the program is in its infancy, it has unintended consequences, regardless of all the things we do. Sometimes that's good to bring back, so I'm glad it was raised.

I want to go back to the real estate example because I just want to make sure I'm clear as to how this works, and also about another scenario that might evolve. If we don't have the answer for this today, it's fine. I'd just like to eventually get this, and when we have some witnesses it will help.

From what we understand right now, if you sign on with a real estate agent to find a house or sell your house, you can have an agreement there where the real estate agent, or anybody in his actual agency, could then send an e-mail to you if that scenario comes up where another agent at the same agency wants to send you information related to a search for a house or the sale of your current house. Could that be written as part of the agreement when you sign up? To answer that, what they couldn't do is then provide it to some other real estate agent from another entirely different agency.

So could you have that relationship so you have it with not only the one agent in the company but with all the agents who have signed on to their entire policies and so forth, and then exclude, I guess, the separate ones, like his buddy whom you just talked to down the road, or something like that?

[Helen McDonald]

I don't know enough about real estate to know whether you're signing on with a specific agent, and any of the agents working for the same company are all working towards the same goal. Perhaps during the discussions, as you try to establish this relationship with the realtor, that would be covered and it would be part of implied consent. I think you used the word “written”. It would not require that you have a formal agreement with them as to who could e-mail or call or not. I think it could come up in a discussion, and as long as it was understood, then it would be a form of implied consent that we'd ask whether, if our sister company or someone else had places in this area, you'd be interested in hearing about that.

[Brian Masse, NDP, Windsor West, ON]

Yes, because it brings up a further scenario. You have businesses like real estate agents or insurance agents and car dealers, for example, where they create their own databases of people they've been customers with. With this bill, what would happen if they left? This often happens in those occupations, that they move from either a provider or a company on a regular basis, every couple of years; it's not uncommon. Would they then have the ability to re-contact all their contacts, if perhaps the person has agreed, under the scenario of the person's being at a particular agency? At the same time, you often actually.... I use the same real estate agent we've always had, but the person has changed to different companies.

Once again, we don't have these scenarios now, but I think it's important that we go through them.

[Tony Clement, Conservative, Parry Sound—Muskoka, ON]

Sure, and let me say that if you look at clause 10, you have the definition of “express consent”, including under subclause 10(4), and the definition of “existing business relationships”. I would encourage the committee to go through that list. There's also, under subclause 10(6), the definition of “existing non-business relationship”. So go through that list and find out whether that makes common sense to you.

I'm not going to opine anymore, because I'm going to get myself into trouble with Mr. Rota again. I'm guessing that part of his question is at least answered in subclause 10(4). But let's go through that and make sure it covers things in a common-sense way and meets our objectives.

[Brian Masse, NDP, Windsor West, ON]

Thank you, Mr. Chair.

[The Chair, Conservative, Michael Chong]

Thank you, Mr. Masse.

Mr. Lake, please go ahead.

[Mike Lake, Conservative, Edmonton—Mill Woods—Beaumont, AB]

Thank you, Mr. Chair.

I want to talk a little bit about charities and maybe companies that conduct research--those kinds of companies. Can you talk a little bit about how the protection would affect them--probably charities in particular--so they don't get lumped in with spammers?

[Helen McDonald]

Under subclause 10(6) it talks about donations or gifts and it talks about volunteer work. There's usually an 18-month period that allows that relationship, if you like, to continue. So that's one way in which what are called “existing non-business relationships” are protected.

I think you talked about political parties. There are also provisions in subclause 10(6) for members of associations or parties, clubs, voluntary associations. They also have an 18-month period--if you have a relationship with them--to allow these kinds of messages to be sent, because presumably it may be an annual event or something else that you might want to protect.

I think the other point we want to be clear about is whether it's commercial or non-commercial activity, to try to make sure we are looking only at those things that are commercial in nature. So that might rule out some types of relationships.

[Mike Lake, Conservative, Edmonton—Mill Woods—Beaumont, AB]

Okay.

You talked a little bit about the international reputation Canada has, and it's not a very good one in regard to spam. Can you talk a little about how that affects--and I know the minister talked about this--our international cooperation? It's very difficult, if you're not meeting the standard, to get cooperation. How does the international cooperation piece of this legislation work?

[Helen McDonald]

It envisages the three separate organizations--the Privacy Commission, the Competition Bureau, and the CRTC--as being able to work with their counterparts. I wouldn't have described it quite as Interpol; I'd describe the communications regulator in Australia as the counterpart for the CRTC. It's the organization charged with oversight and implementation of their equivalent act. So our bill would allow the CRTC to share information with Australia to help Australia apply its own law if perhaps the spammer is located in Canada.

We can also work with them to try to make sure that spammers located in, say, some European countries, if they have a substantially equivalent law.... It can't be Australia; it must be some other jurisdiction because Australia has dealt with most of them. It probably allows them to exchange information with us that would allow us to help go after spammers from other countries who are targeting Canadians. Unless you can share information, you can't really take action against them. The provision of the bill allows that kind of provision of information and collaboration across these, essentially, administrative arms of government.

[Mike Lake, Conservative, Edmonton—Mill Woods—Beaumont, AB]

I guess there would be no borders when it comes to this. Ultimately, the fact that we don't have legislation right now sort of contributes to this idea of Canada almost as a haven for spammers. They send from Canada to other countries where they have laws, but they can't touch the spammer in Canada. Is that--

[Helen McDonald]

And we can't help them. Not only can spammers stay in Canada and feel somewhat protected, because there are no laws in Canada that allow us to go after the spammer, but it also prevents us from sharing information that could be helpful to these other jurisdictions.

[Mike Lake, Conservative, Edmonton—Mill Woods—Beaumont, AB]

Just changing direction a little bit, Mr. Garneau talked about sort of casting the wide net, and I think Mr. Rota kind of touched on it as well, almost in a negative way. I understand the concerns they're bringing up there, but I would think that in an area like this, where technology is changing all the time, the danger of not casting that wide net, in a sense, is that you're going to be changing your legislation every time technology changes, right?

[Tony Clement, Conservative, Parry Sound—Muskoka, ON]

Yes. I was saying that rather inelegantly, but that's exactly my point.

[Mike Lake, Conservative, Edmonton—Mill Woods—Beaumont, AB]

Okay. Thank you.

[The Chair, Conservative, Michael Chong]

Thank you, Mr. Lake.

Madam Coady.

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

Thank you very much, and thank you, Mr. Minister, Ms. McDonald, and Mr. Simpson, for being here, and so late in the evening. We really do appreciate it. It gives us a good overview of where your heads are with regard to this legislation.

First of all, I don't think there's a person in this room who wouldn't agree that spam is harmful and hurtful to industry and individuals and we have to do something about it, so I think you have our concurrence in that regard.

On this particular bill, there are some challenges that I think as the minister has indicated we do have to overcome. I guess my first question would be, did a draft of the bill go out to stakeholders, and did you get feedback from the draft?

[Tony Clement, Conservative, Parry Sound—Muskoka, ON]

We did not do a pre-existing consultation on the draft itself. We announced, I guess around April 24, that the bill was there. But we'd had a lot of contact with stakeholders prior to that to get their sense of what was necessary.

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

That dates back to, say, the anti-spam round table of 2005. I think looking at what the anti-spam round table of 2005 did, this bill goes beyond what the discussions were at that time. Ms. McDonald's point is that she's looking towards our investigations over the next number of weeks as critical to improvements to the bill, because there are improvements required. For example, there are the anti-spam provisions from Mr. Garneau. I'm going to talk a little bit further about that.

I'm concerned about the address-harvesting provisions. As I understand them, it does remove some of the widely accepted generally applicable exemptions under the legislation, for example. There are concerns about that. I'll get to those. There are concerns that the anti-spyware provisions are a bit broad. So there a number of issues that we're going to have to focus on. Mr. Garneau talked about the extraterritorial provisions, as well as some of the remedies.

Just let me get to the anti-spam, if you would be so kind, because the main anti-spam provisions are found, I think, in clause 6. You've clarified what they are. The spam task force network and technology working group in May of 2005 had a different interpretation, much more succinct. The bill assumes that all electronic communications of unwanted spam, and we've talked about this.... It prohibits all commercial electronic messages, except in very limited circumstances. That's where I believe, Mr. Minister, that you indicated that we'd probably see acceptable commercial activity outlined in the regulations. Is that where you're going to put most of these?

[Tony Clement, Conservative, Parry Sound—Muskoka, ON]

Well, there are some found in the actual body—

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

Some are found under clause 10.

[Tony Clement, Conservative, Parry Sound—Muskoka, ON]

—but for others, obviously, we have a catch-all in paragraph 6(5)(c).

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

Yes. But the bill's scope really does depart from the anti-spam legislation found in other areas or among our international counterparts. For example, if you look to the EU directive and the U.K. act, they talk about direct marketing. The Australian spam act and the New Zealand spam act really define it towards direct marketing. Singapore looks at direct marketing.

Did you consider narrowing the scope? When you look at what your scope is, it's very, very broad; it's a catch-all. We've talked a bit about that. Other legislation around the world is absolutely more defined to direct marketing.

Do you have any comments on that?

[Helen McDonald]

I can ask Richard to speak more directly about what we learned from other countries and their experiences, but I think we were concerned that if we narrowed it too much, people would claim they were not doing direct marketing, but something else—the provision of information, or something else. You want to make sure you capture the behaviours that are clogging our e-mails and discouraging people from moving online. So we tried to restrict it to focus on the unsolicited and commercial activities, with a series of exemptions—which I don't think are tiny—laid out to try to make sure the legitimate businesses could continue, while actually putting a stop to the behaviours and practices slowing down electronic commerce.