Industry Committee on June 16th, 2009

[Barry Sookman]

This is a circumstance that many Canadian businesses are confronted with, and what we're suggesting would actually protect those businesses. They aren't the businesses that are establishing websites and saying, “E-mail me. Here's my e-mail address.” You're referring to businesses that aren't doing anything that would invoke business relationships or implied consent situations. The regime I'm suggesting would protect those businesses you're referring to, because they receive e-mail, there's no express consent, and there'd be no way to even argue an implied consent. So I think the situation would be adequately dealt with.

[The Chair, Conservative, Michael Chong]

Thank you very much, Mr. Sookman, and, merci, Monsieur Vincent.

Mr. Lake.

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

If I could, I want to deal with the question of the administrative monetary penalties. I think Ms. Morin brought this up. As I was looking at clause 20 here, in terms of the issues, there was some talk of someone not being able to afford a million dollars or $10 million, but when I read subclause 20(3), “The following factors must be taken into account when determining the amount of a penalty”, it seems eminently reasonable to me that the things we take into account are: “(a) the purpose of the penalty; (b) the nature and scope of the violation;” (c) and (d) “the person's history”; “(e) any financial benefit that the person obtained from the commission of the violation”--that seems to make sense; “(f) the person's ability to pay the penalty”--that makes some sense; (g) whether they “voluntarily paid compensation to a person affected by the violation;” or “any other factor”.

So it seems as though we're kind of covered there. I don't think there'd be a concern that someone, the first time they committed an offence, would wind up getting a bill for a million dollars, or a company for $10 million.

Maybe comment on that. Do those clauses there seem like a reasonable approach to this?

[Suzanne Morin]

As I mentioned in my opening comments, I think Industry Canada went to great lengths to try to diminish possible negative consequences on business and those who might make a mistake, or who really aren't the ones who are filling up inboxes of individual Canadians, or citizens around the world for that matter, or Canadian businesses. But it's still placing Canadian businesses in the position of having to now comply with what is in essence a new and potentially overlapping regulatory regime, because a business, large or small, still has to defend itself before the regulator, which is the CRTC in this case, or the Competition Bureau, or defend itself before a private right of action. There are definite provisions for undertakings. I've had people e-mail me and ask me, what's an undertaking? Does a small company actually know what it means to do that?

There's no doubt that over time the regulator would come up and develop those practices, but for those types of situations, the ones that really aren't harmful--these aren't the ones that are filling people's inboxes--we have a perfectly legitimate privacy regime that works. So it's just flipping it on its head a little bit, if you like, and rather than have the legitimate company have to defend themselves, it could also be that all those factors that you listed, those are the things you use to nail the ones who are flaunting the law.

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

I have a very short time, so I'm going to move on, but it seems to me that this is more working with the existing privacy legislation than against it.

Mr. Sookman, there are a couple of articles from something called SPAMfighter News, and I have to say I'm not really familiar with the publication, but I was interested to note some of the ideas that were attributed to you. This wasn't a direct quote from you, but it certainly attributed the thought to you that relatively new software developers delivering e-mail queries to those distributors with whom they never had a business relation could also be detained. That seems rather harsh. I don't see anything in the legislation that talks about people being thrown in jail for this.

[Barry Sookman]

I never said that.

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

I just wanted to clarify that. It did say in the paragraph, “Sookman noted that”, and went on to kind of attribute the thought to you, so I just wanted to get some clarification.

[Barry Sookman]

I have problems with the inaccuracy of the--

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

Okay.

You don't really think the law would ban Canadians from using the Internet? There might be a tweak or two needed to fix a few things, but we're not talking about an Internet ban for Canadians, are we?

[Barry Sookman]

There's a question about whether the bill would be applied literally--do what it says, as anyone would ever interpret the actual words--or whether somebody would step back, look at the spam report, and say, “Oh, my goodness, nobody ever intended that.”

Look at the spyware provision, as an example. It says you need express consent before any computer program can be installed on a computer. When I first saw those words, I thought, “Oh, my goodness”, because when you think about how the Internet works, code is loaded into browsers, and the instant a web browser hits a site, if it's a Java program, you have Java programs installed in a browser. Or if the site is developed using HTML code, the second the browser hits the site, you have HTML code installed.

Taken very literally--although I have no doubt that nobody intends this, since it would be impossible to get express consent prior to actually accessing the website, unless website operators were going to try to get consent from everyone who might possibly use them in some other medium--then technically it could have that far-reaching effect. I think people realize that needs to be fixed. I don't think the fix is to rely on some web browser setting, as one suggested, because that's not a technologically neutral fix. It deals with only one situation. This is a more generic problem.

Again, I think the bill can be fixed so this doesn't happen. If that section targeted only malware, it would not be a question.

[The Chair, Conservative, Michael Chong]

Thank you very much, Mr. Lake and Mr. Sookman.

Mr. Masse.

[Brian Masse, NDP, Windsor West, ON]

Thank you, Mr. Chair.

On that subject matter, when I first saw the bill, I thought, “Geez, maybe Microsoft might actually have to release a platform that worked when they had put it on the market first.”

[Voices]

Oh, oh!

[Brian Masse, NDP, Windsor West, ON]

In all seriousness, do you have a specific suggestion in terms of that? Is it just to put in malware? Is that it? Is that the end-of-the-day suggestion that we would have? And wouldn't that then open us up to other problems?

[Barry Sookman]

I think when you look at the balance between trying to prohibit perfectly benign and beneficial programs and then trying to work your way out of it through, potentially, regulations that don't exist today to cover that situation, or trying to identify what really is a problem, it's a lot easier to define what malware is, because people know it, and then to leave the regulations available, as Mr. Courtois was saying, to be able to expand it.

I really do think there's going to be more variation and diversity in the use of different kinds of computer programs that are benign and useful on the Internet than there are going to be innovations in spammers. I think through diligent regulation we can deal with the new innovations in spammers, but I do have real concerns about dealing with legitimate innovations and making them legal one after another. I think that is very difficult.

[Brian Masse, NDP, Windsor West, ON]

To all the panel, I'd like to hear if there's consensus or support for the current structure of the 18-month contact and the provisions around that. We haven't heard a lot about that.

Is there a comfort level, the way the bill is currently structured, in terms of the 18-month business contact and personal contact?

[Bernard Courtois]

I think I expressed the fact that I find it awkward that people I've either had a contract with...or certainly that people wouldn't buy a product more than 18 months ago. I think 18 months might have been useful in other contexts, but here, I think, what you're trying to distinguish between is e-mails that you don't want to receive and e-mails that you do want to receive.

I think 18 months is an arbitrary cut-off. I can have a relationship that's well over 18 months, and I want—

[The Chair, Conservative, Michael Chong]

Mr. Courtois, excuse me. We have a point of order.

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

Mr. Chair, can I just have Mr. Masse, Mr. Courtois, or maybe even an official from the room point out where that is? I don't believe that's part of the legislation, this 18-month express consent issue that's being brought up.

[The Chair, Conservative, Michael Chong]

Thank you very much, Mr. Lake. That is not a point of order.

We'll continue with Mr. Sookman and Mr. Masse.

[Bernard Courtois]

In the definition, paragraph 10(4)(a) refers back to subclause 10(3), and it says:

the purchase or lease of a product, goods, a service, land or an interest or right in land, within the 18-month period immediately preceding

[The Chair, Conservative, Michael Chong]

Okay, thank you, Mr. Courtois. That's not a point of order, but thank you for addressing the question.

Mr. Masse, go ahead.

[Brian Masse, NDP, Windsor West, ON]

I know there were some things...for example, a real estate agent or an insurance person might move companies and so forth, and we may have to look at those situations.

I want to make sure the other people at the table get a chance to comment on this as well.

[Wally Hill]

We are comfortable. This is a definition of the existing business relationship. It's a definition that was worked out in discussing another marketing channel, and we feel it can apply equally in this instance.

[Barbara Robins]

I'd just like to say I think it definitely can apply, because we have it in here, but you may want to have a look at, for example, New Zealand's law, which refers to the term of consent that can reasonably be inferred--so whether we're talking about inferred or complied...the conduct in a business and other relationships of persons concerned. It has a more open and flexible definition, as opposed to 18 months, which in certain circumstances may or may not appear to be arbitrary. There are other laws that do provide slightly more flexible language to imply an inferred or deemed consent.