Industry Committee on June 18th, 2009

[Elizabeth Denham]

We've never had the capacity to refer complaints in this way. We're looking forward to the passage of this bill so we can do that. But, yes, indeed we will track the referrals of our complaints and probably give a heads-up to that organization that a complaint is coming their way.

[Brian Masse, NDP, Windsor West, ON]

I think that's important. I know that in certain cases, especially when you're just the general public, you can get a little bit frustrated when you think you're going to the proper place to register your complaint and then you're kind of punted around. It's not that anyone means to do so; it's just that they're following the process. But if you're a general person out there, it can become very frustrating.

[Elizabeth Denham]

I understand, and I think it will be very important for us to have this coordinating agency so that it is one-stop shopping and so the public doesn't get confused and referred around and around.

[Brian Masse, NDP, Windsor West, ON]

That will be very effective for the marketing of the new program as well.

Thank you, Mr. Chair.

[The Chair, Conservative, Michael Chong]

Thank you, Mr. Masse.

Thank you, Madame Denham.

Mr. Rota.

[Anthony Rota, Liberal, Nipissing—Timiskaming, ON]

Thank you, Mr. Chair.

Thank you for coming today. I would like to continue in that vein a bit, about the investigation of complaints and the complaints that come through.

Ms. Denham, I understand the commissioner has the right to determine what is frivolous and what is serious. How would that work? I'm just trying to picture it. I would come to your agency or I would come to you and say “Okay, I have a problem.” I guess what I'm looking for are the guidelines or the criteria that would be used and the length of time it would it take for me to find out that my complaint or my charge would not work or would not be dealt with.

[Elizabeth Denham]

Hedy Kirkby is going to answer this difficult legal question.

[Hedy Kirkby, Acting Senior Counsel, Office of the Privacy Commissioner of Canada]

I'd be delighted to.

[Anthony Rota, Liberal, Nipissing—Timiskaming, ON]

I was asking was about someone who brings a charge or a complaint forward.

[Hedy Kirkby]

You mean to our office?

[Anthony Rota, Liberal, Nipissing—Timiskaming, ON]

I mean to your office. What is the process for determining that something is frivolous or that it is a nuisance, and how long does it take for someone to realize or get an answer back that their complaint will not work or will not be dealt with?

[Hedy Kirkby]

We have some experience, but not very much experience, with the concept currently under PIPEDA. Under the act as written right now, while we don't have the ability to refuse to investigate or to discontinue an investigation, the commissioner has the limited ability to not finish an investigation or issue a report in a number of situations, including those in which a complaint is trivial, frivolous, or vexatious. The office has looked at it on a number of occasions as potential candidates for that situation, and my understanding is that never once have we found actually a situation that would be considered within that category. There is a reasonably high threshold legally to be able to justify rejecting or discontinuing a complaint.

[Anthony Rota, Liberal, Nipissing—Timiskaming, ON]

I ask that because it sounds to me almost as though someone who has something frivolous or something that's considered frivolous—and that worries me even more—suddenly goes into limbo and just stays there and doesn't get dealt with. Is that how that works?

[Hedy Kirkby]

No, that's not how it works at all. It's looked at. It's assessed. It's measured against standards that have been set by the courts in terms of what that expression means; a decision is taken, and one continues. The process in our office has gone quite efficiently on that. Decisions were made quickly to assess that they were valid matters, that they should be investigated to the very end, and that reports should be issued. They weren't in limbo at all.

[Anthony Rota, Liberal, Nipissing—Timiskaming, ON]

Okay, very good.

My next question is for Mr. Schippers.

On a similar note, the bureau can seek court injunctions. The complaints are filed centrally, and then you deal with any complaint yourself. The Competition Bureau takes care of that.

I'm looking at your resources. You talked about resources earlier. How much more in terms of resources will you need? And are you capable of taking care of any complaints that come forward, or, again, will they take a while?

Right now I'm thinking of a situation we have with Interac in which we're hearing that it's taking a lot longer than usual or it's taking a long period. There are some delays. You have limited resources, and I understand that. If someone complains, and there's something to be done, how long will it take or what kind of time period are we looking at? Or is that very difficult to assess at this point?

[Duane Schippers]

Every case is going to be unique in terms of how long it's going to take.

If we talk about resources, no law enforcement agency is ever going to be able to tell you that they have every resource they'd like to have, because they'd probably want to take every case forward. They don't have the resources to take every single case forward that comes in the door. They do have to exercise some discretion, and they look at alternative case resolution methods.

Many times in our work a complaint can be resolved by an investigator calling the subject of the complaint and discussing what the misleading advertising issue is. Often that leads to voluntary corrective action. Quite frankly, that's our first preference. We don't want to spend a lot of taxpayer resources prosecuting businesses that are legitimate businesses that just occasionally step offside either because they misinterpret the legislation or because they're trying to be innovative and creative in what they're doing.

But we do take action against false and misleading advertising, and if it's false and misleading, we're going to take action. With the resources we've requested, we are confident that we'll have the resources we need to deal with any additional complaints coming in as a result of our spam complaints.

[The Chair, Conservative, Michael Chong]

Thank you very much, Mr. Schippers.

Mr. Van Kesteren.

[Dave Van Kesteren, Conservative, Chatham-Kent—Essex, ON]

Thank you, Mr. Chair.

Thank you, guests, for appearing here today.

Some businesses would argue that they should have a right to contact and advertise. I want to know what the difference is between sending some types of spam, which some would argue is advertisement, and junk mail, because many of these addresses are also traded between mailers.

In connection with that, in your opinion, will the provisions aimed at dealing with address harvesting and the unauthorized collection of personal information via unauthorized access to a computer interfere with legitimate practices currently under way?

Madam Denham, could you maybe answer that?

[Carman Baggaley]

Let me address the first part of the question about whether this hinders the ability of businesses to engage in legitimate marketing. In some ways, I think using electronic means of communication to do marketing is quite different from, say, direct mail.

One obvious example is if someone is using text messages. Many services impose a cost when you receive a text message. No cost is imposed on me when I receive something in my mailbox.

Another problem with electronic messages is that we've seen this phenomenon of phishing. Sometimes it's very difficult for the individual to figure out if it's really an e-mail from RBC or whether it's simply some organization pretending to be RBC. Also, e-mails can have viruses in them.

There are all kinds of harms that can arise with respect to electronic messages that don't arise with respect to direct mail in particular. So for many of those reasons, and certainly the cost that imposes on businesses, which I think you've heard about, we certainly think the regime that's being created to deal with electronic messages is reasonable.

With respect to the issue of address harvesting, this is a difficult issue. Again, we think what this is intended to deal with is organizations that are collecting e-mail addresses, using what are called dictionary attacks to generate lists of e-mail addresses, and then either using them to send spam or selling them.

We've had some discussions about whether or not it would be necessary to make small adjustments to that provision to deal with some scenarios. We're open to minor adjustments on the address harvesting, particularly to deal with cases where we understand that a search engine, for example, may collect e-mail addresses in order to determine where they're coming from.

When you search on the word “Chelsea”, if you're in England, it's probably the football club. If you search on the word “Chelsea” in the United States, it may be the district of New York. You want to know where they collect e-mail addresses. There may be ways to address some of those problems.

[Dave Van Kesteren, Conservative, Chatham-Kent—Essex, ON]

In connection with that, do you feel that the government has struck an appropriate balance between legitimate business and catching the bad guys? I guess that's what we're concerned about more than anything else. Do you foresee any negative implications for legitimate businesses?

[Carman Baggaley]

I'll be quite honest. It's very difficult to draw the line between legitimate businesses and illegitimate businesses, and it's very difficult to craft legislation that deals with that. Now, having said that, I think the provisions that allow people to send electronic messages if there's an existing business relationship are one way of addressing that.

I think the other point worth emphasizing is that if you're like me, you're fairly careful about to whom you give your e-mail address. By doing that, I think in many cases you're going to ask why they're asking for it, and you're going to have a pretty good idea of what the person is doing. It wouldn't be that hard to build consent into that process upfront.

[The Chair, Conservative, Michael Chong]

Thank you very much, Mr. Baggaley and Mr. Van Kesteren.

Monsieur Vincent.

[Robert Vincent, Bloc, Shefford, QC]

Thank you, Mr. Chair.

Mr. Schippers, you referred earlier to a study you did on new resources that you would be needing. Is your study based on your own experience or that of countries that have enacted similar legislation?

[Duane Schippers]

We did two things. First, we did a comparative study of the current legislation and the new powers we would have under Bill C-27. We also compared what is going on in the United States, Australia and the United Kingdom.

At the end of the day, in each of those countries, the types of changes made to the competition or consumer protection legislation were very similar, we think, to the types of changes being made here. Their mandates were expanded slightly, but the core focus of their mandate remained false and misleading advertising--not a huge change in the mandate.

Then we looked at our own resources and determined what we'd need to purchase in terms of additional software and other technology equipment to carry out our role, and also what additional people resources we'd need.

That's how we came to determine what our resource requirement would be.

[Robert Vincent, Bloc, Shefford, QC]

Is that study available?