Evidence of meeting #30 for Industry, Science and Technology in the 40th Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was spam.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

Elizabeth Denham  Assistant Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada
Duane Schippers  Deputy Commissioner of Competition, Legislative and Parliamentary Affairs Branch, Competition Bureau
Carman Baggaley  Strategic Policy Advisor, Office of the Privacy Commissioner of Canada
Hedy Kirkby  Acting Senior Counsel, Office of the Privacy Commissioner of Canada
Konrad W. von Finckenstein  Chairman, Canadian Radio-television and Telecommunications Commission
Len Katz  Vice-Chairman, Telecommunications, Canadian Radio-television and Telecommunications Commission
John Traversy  Executive Director, Telecommunications, Canadian Radio-television and Telecommunications Commission

4:05 p.m.

Conservative

The Chair Conservative Michael Chong

Thank you, Mr. Schippers.

Mr. Lake.

4:05 p.m.

Conservative

Mike Lake Conservative Edmonton—Mill Woods—Beaumont, AB

Thank you, Mr. Chair.

I want to start by addressing some questions that previous witnesses have had over our last couple of meetings.

First, dealing with PIPEDA, Ms. Denham, it was suggested by one of the witnesses in the last meeting that PIPEDA was sufficient to address spamming activities.

I just want to find out whether you concur with this view.

4:05 p.m.

Assistant Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada

Elizabeth Denham

I don't concur with that view.

In the experience of our office, we have investigated, I think, seven or eight complaints about harvesting e-mail addresses. The difficulty in investigating those complaints is that there is ambiguity in PIPEDA as to when express consent or when implied consent can be relied on. These are long and involved investigations. I think the clarity in the ECPA is useful, and it's effective.

4:05 p.m.

Conservative

Mike Lake Conservative Edmonton—Mill Woods—Beaumont, AB

Okay.

Regarding the administrative monetary penalties, I will ask both of you a question. I'll start with Mr. Schippers.

In your case, I understand that the AMPs haven't changed. They're actually the same. They just use the AMPs that are already in place for the Competition Bureau. It was suggested at a previous meeting that perhaps those AMPs were too high.

Maybe you can speak to that question.

4:10 p.m.

Deputy Commissioner of Competition, Legislative and Parliamentary Affairs Branch, Competition Bureau

Duane Schippers

The AMPs that we have now are the AMPs that came about as a result of Bill C-10, the Budget Implementation Act. There was a series of changes in the act to bring administrative monetary penalties up to a level that would encourage compliance, as opposed to being a pure licence fee to engage in misleading advertising activity.

So that's what happened. For a first offence for an individual, it's $750,000 as a maximum. For a second offence, it's $1 million. For a corporation's first offence, it's $10 million. The second offence is $15 million.

Now, it doesn't mean that someone is going to end up with that administrative monetary penalty every time. The act sets out a series of factors that the Competition Tribunal or a court has to take into consideration before awarding an AMP. That includes the history of the behaviour, the isolated nature of that behaviour, the history of compliance with the act, and that type of thing.

We're also looking at the financial resources. The idea is not to create capital punishment for business when they fall offside of the legislation. The idea is to deal with false and misleading advertising in a firm manner so that Canadians can have confidence in the marketplace, particularly the online marketplace. That's an area where there is some lack of confidence. When people use their credit cards to purchase online, they want to know that what they're buying is what's been represented to them as the product being sold.

4:10 p.m.

Conservative

Mike Lake Conservative Edmonton—Mill Woods—Beaumont, AB

Ms. Denham, on that issue, the way some witnesses have presented it is that there is a fear that a small business might have an employee who inadvertently sends out an unsolicited e-mail and the small business would get a $10 million fine or the employee would get a $1 million fine. They want to be reassured that this is not going to happen. Can you reassure them?

4:10 p.m.

Assistant Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada

Elizabeth Denham

I can, because we're an ombudsman. The AMPs doesn't apply. There are no penalties under PIPEDA.

4:10 p.m.

Conservative

Mike Lake Conservative Edmonton—Mill Woods—Beaumont, AB

Okay, in your case, of course.

I want to talk about express consent and implied consent. One of the concerns that I've heard comes from realtors. After they sell a home to somebody, typically in the realty business cycle the person who bought the home won't be in the market to buy another home in less than 18 months. It might be four or five years. Realtors want to know that they'll be free to use their client's e-mail address to touch base with their client four or five years later, to see how happy the client is with the purchase and maintain that connection with their client. Can you reassure them that it will be okay for them to do that?

4:10 p.m.

Assistant Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada

Elizabeth Denham

My former realtor always brings me a big basket of goodies at Christmastime; I would say to add a notification and a consent to that basket. It's true that the implied consent provision in the ECPA would expire after 18 months. It wouldn't carry on for years and years.

I would recommend to the realtors that they build in that consent provision up front. I'd also like to suggest that if organizations had been complying with PIPEDA all along, there wouldn't be a problem today. These rules have been in place for a very long time.

4:10 p.m.

Conservative

Mike Lake Conservative Edmonton—Mill Woods—Beaumont, AB

It's a simple matter of asking them for an e-mail address, and when they ask for the e-mail address, they would also ask if it's okay to contact them in the future.

4:10 p.m.

Assistant Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada

Elizabeth Denham

That's correct. Then the individual would have the option of opting out of that somewhere along the line. I think that's the proper way to conduct business in a respectful way.

4:10 p.m.

Conservative

Mike Lake Conservative Edmonton—Mill Woods—Beaumont, AB

I'll now talk about something that has caught my attention.

Mr. Schippers, you were talking about false headers. One of the things I thought about, and I might be wrong...would that apply in the case of politicians? How about using an MP's name so that a website looks like an MP's website, but it is something completely different? I'm asking this out of curiosity.

4:10 p.m.

Deputy Commissioner of Competition, Legislative and Parliamentary Affairs Branch, Competition Bureau

Duane Schippers

I don't believe that an MP has ever misled anyone in his or her publications.

June 18th, 2009 / 4:10 p.m.

Voices

Oh, oh!

4:10 p.m.

Deputy Commissioner of Competition, Legislative and Parliamentary Affairs Branch, Competition Bureau

Duane Schippers

That said, what we're concerned about at the Competition Bureau is false and misleading advertisement to promote the sale of service or a product.

That or charitable giving activities are not the kinds of things we're focused on when it comes to misleading advertising. Our issue is commercial activities where someone is trying to create an uneven playing field in the market by misleading consumers to purchase his or her product over that of someone else who is playing fairly.

4:15 p.m.

Conservative

Mike Lake Conservative Edmonton—Mill Woods—Beaumont, AB

Having worked for the Edmonton Oilers before I was elected, I was concerned about someone creating a false Mike Lake website and posting pictures of me in a Flames jersey--or perhaps a Liberal jersey; that would be a bad thing too.

In terms of the importance of this legislation, we're in a minority government context here. Thankfully we avoided an election right now, but come the fall, who knows what might happen. A few times we've seen important legislation fall by the wayside when an election is forced.

How important is it for us as parliamentarians to make sure that we get this legislation passed in terms of the global context as it relates to spam?

4:15 p.m.

Deputy Commissioner of Competition, Legislative and Parliamentary Affairs Branch, Competition Bureau

Duane Schippers

In terms of spam, Canada is the only G-7 or G-8 country—depending on what number one uses—without effective spam legislation. More important, given the current economic situation, what we at the bureau notice is that there is an uptick in misleading advertising activities.

For people who are unemployed, there's an opportunity for job websites to take advantage of people in these circumstances. We notice an uptick in misleading advertising. From that perspective, it's important to make sure that we have the tools so that we can deal effectively with this kind of misleading advertising.

4:15 p.m.

Conservative

The Chair Conservative Michael Chong

Thank you, Mr. Schippers.

Mr. Masse.

4:15 p.m.

NDP

Brian Masse NDP Windsor West, ON

Thank you, Mr. Chair.

Thank you to the panel for being here.

I'll start with Mr. Schippers.

On your comments with regard to resources, I want to have a comfort zone, I guess. Will your department be looking at vulnerable groups that get targeted, such as, for example, seniors and others who sometimes are zeroed in on with some of this misleading advertising? Will you have the ability to do that?

You're indicating that you have some modest resource requests, but has there been a full evaluation, or is it just a general sense right now as to what you might need to get going to start with and then you'll do an evaluation later? Has that already been concluded? Will you get sufficient resources?

4:15 p.m.

Deputy Commissioner of Competition, Legislative and Parliamentary Affairs Branch, Competition Bureau

Duane Schippers

The possibility of this legislation has been a possibility for some time, so we have gone through a fairly detailed analysis of the resources we need.

On your question about vulnerable Canadians, that's already a large part of our program on false and misleading advertising. When I talk about modest resources, they really are modest. It's about giving us the extra tools to get these kinds of things, these header advertisements, so you don't have to.... You know, you're promised the free health club membership in the subject line of the e-mail, and it's only after clicking through, which is the whole objective of the spam--to get you to click through it and start reading it--that you find out there is a $1,000 initiation fee. We want to be able to take action on the first part, which is that you've misled people just by getting them to look at your product by saying it's free.

That's the kind of thing this legislation will do from the Competition Bureau's perspective. We'll still continue with our program to protect vulnerable people. In fact, the legislation is very clear, and when setting AMPs, administrative monetary penalties, and when we do criminal prosecutions, we also look very much at who is the target audience and who is the victim of the activity.

4:15 p.m.

NDP

Brian Masse NDP Windsor West, ON

That's very good.

Ms. Denham, with regard to public awareness, one of the criticisms out there with regard to the do-not-call list is that perhaps the message on how to get onto the list and how the list is used and so forth wasn't as thorough as it probably should have been for the general public, and that led to some initial problems. What type of public awareness campaign do you guys have planned for this type of initiative?

4:15 p.m.

Assistant Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada

Elizabeth Denham

I think we would obviously work in partnership with the CRTC, Industry Canada, and the Competition Bureau, but in our experience, we have found that public education and compliance education for businesses are critical to making this work.

We would definitely have our fact sheets. We actually have a blog on our site. We are now even using Twitter to get the message out to individuals who aren't necessarily the same age as most of us in the room. We would use all kinds of channels of communication. I think that's where we would invest time and resources in the first year.

4:20 p.m.

NDP

Brian Masse NDP Windsor West, ON

Well, we'll look forward to your YouTube video on this.

Here is an example from your presentation that I do want to use. I'm hoping you can clarify this. Under “Investigation of Complaints” in your document, which I've read through, you note that you can dismiss complaints related to other federal or provincial laws or grievances and so forth. One example you give is that it must be “within a reasonable period of time from the date...”. Can you tell us what is a reasonable period of time for that and be a little more specific about why you might dismiss a complaint?

Also, then, does a complaint just basically fall off or is it referred to the other state agencies or the provinces? Is it then up to the individual to go to those other agencies that are being suggested for where the complaint should go, as opposed to yours? Or is the complaint directed by you to those other agencies or governments?

4:20 p.m.

Assistant Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada

Elizabeth Denham

As I said, the amendments to PIPEDA in the ECPA affect all of our collection, use, and disclosure of personal information across the board, not just spam. We often get complaints where someone is complaining about an incident that happened three years ago. It's very difficult to find witnesses, it's very difficult to get evidence, and it's difficult for us to spend our resources investigating that kind of complaint.

As for our ability to refer a complaint rather than take it at the Office of the Privacy Commissioner of Canada, we get a lot of complaints that we think are more properly dealt with by a labour arbitrator, or they need to be dealt with in the workplace through those processes, or by an ombudsman who works for an industry association, for example. We want other complaint resolution processes to take some of the burden off the Office of the Privacy Commissioner.

4:20 p.m.

NDP

Brian Masse NDP Windsor West, ON

Say, for example, I bring in my complaint to you, and you suggest that it needs to go to the ombudsman's office. Would you follow up with that or would you say to the person, “No, you need to call the ombudsman's office”? I guess I'm wondering whether there's tracking, whether or not they go to that place and they find a resolution or they're maybe sent somewhere else. Is any of that tracked?