Evidence of meeting #34 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 e-mail.
A recording is available from Parliament.
5:30 p.m.
Chair, Privacy and Access Law Section, Canadian Bar Association
What it does is impose a compliance cost, in the same way as dealing with spam imposes a cost of having to deal with that spam. I'm not sure where exactly the balance lies between those two aspects.
Certainly it will make people think--hopefully it will make people think twice--before hitting send on any e-mail message to any large number of people, or even an individual message. And that may in fact be the intent of it.
5:30 p.m.
Conservative
5:30 p.m.
Bloc
Robert Bouchard Bloc Chicoutimi—Le Fjord, QC
Thank you, Mr. Chair.
I also want to thank each and every one of you for being here this afternoon.
My first question is not for anyone in particular. I would like to know if you considered the four entities that will administer this bill. I am talking about the CRTC, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act.
I am wondering whether you have any thoughts on the subject and, if so, whether you foresee any harmonization difficulties for these four entities. Do you have any recommendations to ensure that Bill C-27 is implemented properly?
5:30 p.m.
Counsel, Public Interest Advocacy Centre
On our end, we do not foresee any conflicts between the people who will be administering this legislation. The CRTC is responsible for fines. The Commissioner of Competition gets involved only when there is an email or spam message having to do with competition issues.
As for the Privacy Commissioner, normally, she should not have much to do. For instance, if I were to make a complaint about a spam message, I do not see the point of doing so under the Personal Information Protection and Electronic Documents Act. We do not foresee any cost or double jeopardy issues.
5:35 p.m.
Vice-Chair, Marketing Practices Committee, Competition Law Section, Canadian Bar Association
I'd like to answer briefly from the Competition Act point of view.
I've mentioned this is my opening comments, but in terms of consistency it's a real concern to us that the commissioner of competition will be enforcing one standard on header or URL information--locator information--with respect to the Competition Act and claims of false or misleading representations, and a different standard on the content of an e-mail or any other advertising or marketing communications. It makes no sense to us. I think it's confusing to consumers and businesses that they can make certain statements in some media and not in other media when they are equally false or not false, or misleading or not misleading. That's a fundamental concern of ours about the way this legislation tracks into the Competition Act.
It's a very small change. It's just adding a phrase, “in a material respect”, in four places.
5:35 p.m.
Conservative
The Chair Conservative Michael Chong
Thank you, Mr. Alexander-Cook.
I think Mr. Vincent has some questions.
Go ahead.
5:35 p.m.
Bloc
Robert Vincent Bloc Shefford, QC
You were here earlier when the business representatives testified. There is a question I am dying to ask. I heard them ask their questions and say that, in order to send out emails, there had to be a pre-existing business relationship or they had to have already obtained consent, otherwise there could be no communications or emails sent out. Under the bill as it is drafted, businesses cannot do anything.
How can they operate with this chain around their necks while we open the door to foreign companies to do business here? We are telling our businesses not to send anymore emails here, not to do any more marketing or things of that nature, but we are allowing people in other countries to do it in their place.
To come back to what you were saying, Mr. Alexander-Cook, what do we do about that foreign shampoo company that wants to save the planet and sends its products here and that is allowed to market them here because, as a foreign company, it is not subject to the bill? We let it happen? I am not saying that we should leave the door wide open, but I think we need to find a compromise so that everyone can do something. How can we also give our businesses a chance to operate normally in terms of email?
5:35 p.m.
Counsel, Public Interest Advocacy Centre
I think that financial companies, for example, need to be here in order to offer their services. Otherwise, we also have laws. Internationally, we are the only G8 country without any spam legislation. If we have agreements with those countries, I do not think that our businesses will be at a disadvantage.
As for people trying to contact their customers, I have heard that it is difficult. But if I am not allowed to contact the brother of one of my customers, why would I not ask my customer to ask his brother to send me an email directly?
Yes, it takes away a tool that is currently legal, but it is still the buildup of these spam messages that is causing the problem. Overall, it really has a negative impact on electronic commerce, as Mr. Fewer said.
5:40 p.m.
Conservative
5:40 p.m.
Conservative
Mike Wallace Conservative Burlington, ON
Thank you, Mr. Chair.
I'm going to ask Mr. Alexander-Cook a question.
If he wants to respond to what was just said, I'd be happy to have that.
I just want to clarify what you said in terms of the three words you used, “a material consequence” or something like that. I forget the exact wording.
5:40 p.m.
Vice-Chair, Marketing Practices Committee, Competition Law Section, Canadian Bar Association
It was “in a material respect”.
5:40 p.m.
Conservative
Mike Wallace Conservative Burlington, ON
Okay, four words: “in a material respect”.
You've identified where those words could go. I'd appreciate it if you'd let us know exactly where they would go.
So let's say someone phishes me as a TD customer and they send me something that says I had better call them at TD, something's wrong with my account and they need my numbers. It looks like a Toronto-Dominion e-mail, but I know it's BS; I know it's false. That would be covered under this legislation we have in front of us. That would be disallowed. Is that not correct?
5:40 p.m.
Vice-Chair, Marketing Practices Committee, Competition Law Section, Canadian Bar Association
That's correct.
5:40 p.m.
Conservative
Mike Wallace Conservative Burlington, ON
But you're worried that without those other four little words, the more colloquial sayings--“Let's save the world” or whatever phrase you used--would also be caught on an e-mail, or could technically be caught in an e-mail. Is that correct?
5:40 p.m.
Vice-Chair, Marketing Practices Committee, Competition Law Section, Canadian Bar Association
That's correct.
Perhaps I can give you an example that's closer to your TD example. It's technical, and I'm not speaking to the probability of it being pursued, but if a subsidiary of TD who's not actually TD sends the message and says it's TD sending the message, is that false? Arguably, it is. Is it false in a material respect? I think I'd rather be on the side of saying no. If we don't have “in a material respect” there, there's an argument that it's simply false, and that's a problem.
5:40 p.m.
Conservative
Mike Wallace Conservative Burlington, ON
I was thinking about what you were saying about your first point, and I missed your second point, to be honest with you. Could you tell me again what your second point was?
5:40 p.m.
Vice-Chair, Marketing Practices Committee, Competition Law Section, Canadian Bar Association
In my earlier comments?
5:40 p.m.
Vice-Chair, Marketing Practices Committee, Competition Law Section, Canadian Bar Association
The second point concerns the standard that is applied under the Competition Act for a temporary order issued by a court to stop certain conduct that is allegedly reviewable conduct, alleged by the commissioner of competition--
5:40 p.m.
Conservative
Mike Wallace Conservative Burlington, ON
You do something, and the court tells you to stop until it has gone through the system. And what's missing in this legislation?
5:40 p.m.
Vice-Chair, Marketing Practices Committee, Competition Law Section, Canadian Bar Association
To be specific, currently under the relevant section in the Competition Act, subsection 74.11(1), to issue one of these orders, a court must find “a strong prima facie case” of reviewable conduct and then be satisfied that serious harm would otherwise result--and some other factors--so that the balance of convenience favours the issuing of the order. This bill would change that standard. A court may order a person who, it appears to the court, is engaging in reviewable conduct, as opposed to a strong prima facie case.
I know it sounds as though it's maybe a small difference--
5:40 p.m.
Conservative
5:40 p.m.
Vice-Chair, Marketing Practices Committee, Competition Law Section, Canadian Bar Association
—but the standard that a judge must look to in evidence really matters when the judge is considering whether an order will issue or not issue.
5:40 p.m.
Conservative
Mike Wallace Conservative Burlington, ON
I appreciate that. Now I understand that better.
To my friend Mr. Lawford, who is here on occasion and we've met a number of times before, I'm a little surprised that you don't like the $1 million maximum penalty for an individual. Can you tell me why you don't like the maximum being $1 million?