Industry Committee on Sept. 28th, 2009

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

Thank you, Mr. Chair.

Again, thank you to the witnesses for coming today.

As we work through this legislation, I think it's important to distinguish between the types of witness testimony or concerns we've heard brought forward, between ones of a technical nature, many of which have been brought up today and we'll come back when we meet with the industry officials and ask them to go through and give some feedback on those, versus the big philosophical question. I think we've heard a lot today about the philosophical question, the broadness of the legislation, and it seems there are very divergent viewpoints on that. I think from Mr. Fewer and Mr. Alexander-Cook we've had two very different views of what we should do with that, and it reflects testimony we heard previously.

Rather than just reiterating the points of view you've already brought forward, maybe you could comment on and describe how the legislation might move or be changed to accommodate the other person's view a little bit. How could the legislation be changed to move towards the other person's point of view without violating the principle you're trying to protect?

[David Fewer]

That competition amendment sounds reasonable.

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

Thank you.

[David Fewer]

I would to a certain extent reiterate the point made by Mr. Fraser that perhaps we're overemphasizing the difference between our views, in terms of how substantial a difference actually exists.

My sense is that as soon as you start opening the door on “unwanted”, you get into difficulty, because if I'm an e-mail sender, how do I know what you want? The best way is to get the consent, to find out. That's why I like the bright-line rule that the bill draws that says to go and get consent.

The inbox belongs to the business. If you have a pre-existing business relationship, they are your customer. If you have a contract with them, if you're engaged in business with them, you're clean; you're fine. The implied consent rule takes over there.

We start getting into problems of obtaining consent, really, not only when the relationship is over, but when it has been over for a year and a half. That's a pretty long time we're talking about here. I can't imagine a responsible business that takes a year and a half to follow up on a previous customer.

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

But, Mr. Fewer, just to that point, if you're a new business you don't have that existing customer base and you have to try to go out and get that base.

[David Fewer]

What I like about the bill is that it says you can't do it by spamming. You go out and build business the old-fashioned way, or by using new technologies. You take advantage of those new technologies. You get your Facebook set. You build your website. You twitter what you're up to. Those tools are great.

I heard somebody say earlier that those social networking tools don't live well within this legislation. I disagree. I think they're wonderful, because it's so easy to obtain consent. People sign up to you. You don't go around and force people to be your Facebook friends, right? That's not how it works. They agree to be your friends. The tools are set up well.

My response is that if there are perceived problems, targeted problems, let's look at those. We've heard a lot about referrals. We can talk more about those, but opening the door to my knowing what you want is very problematic. Let's stick to the clarity that consent provides us.

[The Chair, Conservative, Michael Chong]

Mr. Fraser, do you have a comment?

[David Fraser]

Yes. If I could just add to that, I think the door is already open, because you could have a categorical outline of unsolicited commercial e-mail messages unless you have the explicit consent of the supposed recipient. The door has opened by opening up this existing business relationship exemption, because really, whether I have a commercial relationship with an organization doesn't tell you anything about whether I actually want an e-mail from them. So there already is an assumption being made, and at least in my own personal view, I don't want to receive the e-mails that I don't want to receive, and I want to receive all the other ones.

Try to legislate that. That's the problem. If you put it in a position of being about empowering consumers to be able to make choices about what goes into their inbox, and assuming that the consumers are reasonable people, maybe you need to fine-tune it so that you actually throw out the existing business relationship provision, because that doesn't necessarily tell you whether they want it, and you base it on a principle of consent, like we have in PIPEDA and other statutes.

You can say that they have your explicit consent to send you an e-mail, so they can go ahead. They can do that and you get to fine-tune it. They can send you e-mail messages about insurance services, but you can tell them not to send anything about mortgages. That gives the consumer even more control. There can be implied consent, and implied consent is always going to be determined by the circumstances, and it is going to be held to a reasonable standard, not a reasonable marketer's standard, not a “reasonable otherwise” standard, but what would be considered reasonable in society generally. That may be the middle ground. That's certainly not the position that's been put forward by the CBA, but there is hopefully some food for thought there.

[The Chair, Conservative, Michael Chong]

Mr. Lawford, do you have something to add to this?

[John Lawford]

I'll go back to my initial point: implicit consent is a door that everyone will try to walk through. The only way to close that door is to say it's explicit consent. You've already opened it so wide with existing business relationships. Everybody I do business with is automatically deemed to be allowed to send me e-mails, whether it is allowed under PIPEDA or not. Whether they have proved implicit consent or not, it's deemed that it's happened. It is all extremely wide, and yes, this bill is a huge shift. Make no mistake: we're shifting from companies being able to e-mail you now at any time they like, about anything, to no, they can't. Yes, it's a huge shift.

Do I think it's going to cause problems and changes in business plans? Yes, absolutely. Do I think it's the only way to actually stop spam? Yes.

[The Chair, Conservative, Michael Chong]

Thank you, Mr. Lawford.

Thank you, Mr. Lake.

Mr. Masse.

[Brian Masse, NDP, Windsor West, ON]

I have no further questions.

Thanks to the witnesses.

[The Chair, Conservative, Michael Chong]

Are there any other members of the committee who have questions they want to ask before we adjourn the meeting?

Go ahead, Mr. Wallace.

[Mike Wallace, Conservative, Burlington, ON]

Mr. Fewer, to help my understanding, I've seen these organizations before, but not yours. Can you tell me a little bit about your organization, who you represent, and how it's formulated?

[David Fewer]

Sure. We're at the Faculty of Law at the University of Ottawa. We are a public interest technology clinic.

How do we work?

[Mike Wallace, Conservative, Burlington, ON]

Who funds you?

[David Fewer]

Who funds us?

[Mike Wallace, Conservative, Burlington, ON]

Are you students or are you already lawyers?

[David Fewer]

Tamir and I are lawyers, but students work at the clinic for credit in the summer, basically as interns.

[Mike Wallace, Conservative, Burlington, ON]

Does the law school fund the program?

[David Fewer]

Partially, but most of our funding comes from external sources, through our participation in administrative proceedings or court cases where we get costs or through foundations that fund the kind of work we do in technology settings.

[Mike Wallace, Conservative, Burlington, ON]

Thank you.

[The Chair, Conservative, Michael Chong]

Thank you, Mr. Wallace.

Mr. Dryden, I believe, had some questions or comments.

[Ken Dryden, Liberal, York Centre, ON]

I'm not a member of this committee but am just filling in at this time, so I'm only going on what I've heard and from many years of living with and receiving this kind of material.

I don't understand the distinction between “unwanted” and “unsolicited”. To me, if it is unsolicited it is unwanted. I really don't understand how you can find a way of making that distinction. I don't want to receive anything I haven't invited others to send me.

Tell me why I am wrong.

[David Fraser]

Could I address that, because I talked about the distinction between “unsolicited” and “unwanted”.

There are going to be instances, at least in my own experience—and yours may differ substantially—where I'm not going to seek something out, but information about it would be welcome. For example, I don't have a commercial or an association relationship with a professional peer, but I do have contact with him on a regular basis, and when this individual changes firms he sends out e-mail to his mailing list to let people know that he no longer is with firm X but is with firm Y. I would never actively go through my Rolodex asking people to keep me up to date on their addresses, but if he did that, it is not necessarily unwanted and not something I solicited. That would be caught under the legislation as it is now, because that e-mail message would be to promote that individual as a person who offers goods and service, and so it would be a commercial e-mail message. We're getting into some pretty fine distinctions between these sorts of messages.

I don't mind if, from time to time, I get contacted in my professional capacity about something I may not seek out; but it is not necessarily something that is unwelcome. If somebody wants to put forward a business proposal where they are not looking to sell me something or to buy something from me but are looking at an opportunity for us to collaborate as business people, that is captured within the definition of a commercial message under the legislation. I don't know who to seek out to give them my consent to contact me in that way, but it may be something that would ultimately be welcome. That's where we get into these distinctions, and it is a little bit of a challenge to come up with general rules that would encompass them all.