Industry Committee on Sept. 28th, 2009

[John Lawford]

Sure. We view commercial electronic messages, as part of clause 6 rather than just the spyware part, as being sort of a bulk offence, if you will. What is the CRTC going to do? They're going to investigate complaints where they've found 1,000 e-mails, 10,000 e-mails, 100,000 e-mails. Hmm, let's work that out: 100,000 times $1 million, or times $10 million. I don't see how people will have respect for this law if the potential fine is $10 million.

However, with the national “do not call” list working just fine and on the same sort of principle, you have up to, as you said before, for a corporation, $15,000 per violation. If I'm Joe's Dry Cleaning and I have a list that's out of date--

[Mike Wallace, Conservative, Burlington, ON]

Remind me, does it say “per violation” in this legislation, or “up to $1 million”?

[John Lawford]

The way we read the legislation, there is a violation per each violation of clause 6, and the way I read it, one e-mail could violate clause 6. I then go to clause 20, which says how much per violation. It could be up to $1 million per offence. To me, if you send 1,000 e-mails, it's 1,000 times $1 million.

Perhaps the maximum was meant to be $1 million, and $10 million a hard cap. I don't know. That was our concern. The way it's written, it's high.

[Mike Wallace, Conservative, Burlington, ON]

Your other concern is the clauses that exempt, at this point, the “do not call” list. You would like to see them completely removed from the legislation.

[John Lawford]

Yes. We want the “do not call” list to continue. It's just starting.

[Mike Wallace, Conservative, Burlington, ON]

This legislation doesn't say it's discontinuing, though.

[John Lawford]

No.

[Mike Wallace, Conservative, Burlington, ON]

Would you agree with that?

[John Lawford]

I agree with that; however, it does have the potential, with a proclamation, to suddenly wipe it out. The hope would be that, by then, the proposed Electronic Commerce Protection Act would cover it.

[Mike Wallace, Conservative, Burlington, ON]

Are you saying why it's there, though? The electronic system is changing so much that, where you can now do banking on your phone in other parts of the world and that's the only communication device they have, portable phones, that gave the government of the day, whichever it happened to be, an opportunity to look at how things have evolved, and that's why it's there.

Do you understand that?

[John Lawford]

We do.

The concern, though, would be that we move to taking the “do not call” list away too soon, when the infrastructure is not ready at the CRTC to receive perhaps many complaints under this legislation, and that it might not work.

[Mike Wallace, Conservative, Burlington, ON]

My final question—and I'm sorry I'm picking on you—is about the 18 months. I asked the previous panel about the 18 months. They liked it defined differently. Are you satisfied with how it's defined in this legislation?

[John Lawford]

Yes, we are, because it parallels the “do not call” list. Just think about it: On the last day of your 18 months, you can always send another e-mail, and if you get a reply, you get a further 18 months to deal with somebody.

[The Chair, Conservative, Michael Chong]

Thank you very much, Mr. Wallace and Mr. Lawford.

Mr. Masse.

[Brian Masse, NDP, Windsor West, ON]

Thank you, Mr. Chair.

The first question is to Mr. Cook. I understand the argument about the Competition Act and having different media treated differently in terms of that. I want you to walk us through again.

When you gave the example of saving the planet in the header, I consider that advertisement actually a lie, so I was actually happy to hear that would stop, because it's a lie. Whether we get a chance to regulate that through the Internet—maybe you can still make that claim outside on TV or radio, and I understand the argument there, that there isn't consistency—why not have an opportunity to stop a lie when we can stop it?

Maybe you can walk us through again, though, if there's another part of the scenario that I'm not quite catching that could have other unintended consequences.

[Kim Alexander-Cook]

I think you're catching it. You don't like my example, so I'll have to come up with a better one. I picked that one because it's an example of what some, but not all, people would regard to be playful hyperbole, puffery. We see it in ads all the time. We think it's cute, interesting.

First of all, it's not misleading. It doesn't mislead us. That's fundamentally the issue.

To the extent you think “save the planet” might mislead someone, I agree with you. If it is a matter of fact that it would mislead people, then I agree with you. Often these things are context dependent.

In the example, in fact, that I brought up the other day, if it were to say “save the Ottawa River”, or “save our waters” or “save our lake”, something that people might think is relevant and they're going to buy that product, then I think you're into a question of, well, will this really save the lakes? When you say “save the planet” or something that is equally distant from reality in connection with the product, which is all I'm saying, it would be, strictly speaking, false. Nobody would believe it was meant to be anything but false, yet technically it would be still be caught under this legislation.

If someone comes up with a better example, I'm happy, but that is the one that came to mind today.

[Brian Masse, NDP, Windsor West, ON]

And I understand your point too; I just wanted to make sure I had that right. It is something to think about, but I still see that somewhat as a benefit, at the end of the day, because it stops information.

Now, I guess it will be up to the CRTC and others to decide what those thresholds are. They'll probably set some interpretations about them as well through regulations.

[Kim Alexander-Cook]

Another way of putting it is that because in the Competition Act it has always been the case that the concern has been about representations that are false or misleading in a material respect, as soon as you put in a provision that no longer requires in a material respect, then it says that they can be false or misleading in a completely immaterial respect. I'm saying that this opens up all sorts of problems. It's completely immaterial, but it's false or misleading.

I often act for companies that make complaints or receive complaints about the behaviour of other companies. I can guarantee you that if you give them the opportunity to raise complaints about false or misleading claims that are completely immaterial, they may still do that. I'm not sure that's something we want to see result.

[Brian Masse, NDP, Windsor West, ON]

Okay. Very good.

I want to ask everybody here, as I asked the previous group, about the 10 days to unsubscribe.

I think what happened today--as sometimes happens in debate--is that some of those in the business community who use this mode of information and technology have it upside down. You know, really, you're privileged to be able to send an e-mail to my computer, which I pay for, with the service that I pay for so that I actually get the capacity to send that information, whether it be high-speed or whatever it might be. It's your privilege, then, to actually put something on my communications systems.

I think that's where I come across, from a consumer's perspective; there's a sense of responsibility there. If I'm going to give you access to my system, through my service that I'm paying for, and if I decide later to unsubscribe....

We heard 31 days, but I have a hard time believing that you can't get off the list for 31 days. There's also the 10 days.

Maybe I can hear from everybody briefly in terms of what you think is reasonable.

[John Lawford]

Perhaps I can start, Mr. Masse.

From PIAC's point of view, we believe that the speed of unsubscribing should be equal to the speed of subscribing. That was a submission we made in the PIPEDA five-year review.

I think the 31 days is being mentioned because the e-mail instantly gets sent out to other channels of marketing. Specifically in telemarketing, under the “do not call” list, you do have to give the telemarketers 31 days to clear the list. So I think they're trying to line it up with that.

But from our point of view, we take the same position: if I subscribe instantly, and I start getting e-mails right away, I should be able to unsubscribe in a similar time period. We're doing it by the same mode. I'm allowed to unsubscribe by e-mail, so why not by the same amount of time?

[David Fewer]

We'd share that view. It should be an effective time period that's realistic, and I haven't heard a compelling argument that 10 days is not a realistic and useful timeframe.

I'm somewhat mindful of the small businesses where maybe someone's on vacation or something like that, but that doesn't seem to be what's being promoted here. What seems to be being promoted is something different. It just says we have a slower business process. It's not a very compelling response.

[David Fraser]

The CBA didn't explicitly address this in our brief, so this will be more of a personal opinion.

It would make sense that it would take place as rapidly as reasonably possible in the circumstances, to a maximum of whatever would be reasonable, be it 10 days or 31 days. The onus should be on the organization to take them off. If they do have the technology to add you to the list instantly, they should be able to take you off it instantly. But there are probably still e-mail lists, if you can think of it, that are manually managed by somebody cutting and pasting e-mail addresses. You need to account for that.

[Brian Masse, NDP, Windsor West, ON]

Thank you very much.

[The Chair, Conservative, Michael Chong]

Thank you, Mr. Masse.

Madam Coady.

[Siobhan Coady, Liberal, St. John's South—Mount Pearl, NL]

Thank you very much.

Allow me to add my appreciation to each of you for having taken the time to come here today, but as importantly, for having taken the time to go very diligently through the legislation and give us some very good suggestions and recommendations.

My first comment has to do with the philosophy of the bill. I think all of us agree--I don't think there's a person who hasn't agreed--that this is a required piece of legislation, but there's a philosophy differential. I'm hearing especially in today's group two different schools of thought, as it were. There are those who think this should be a bill directed just towards what I'm going to call abusive communications, and there are those who really think that it should be very broad, that it should really talk about accountability of electronic communications. I think “accountability” is the word you used.

So there are two kinds of philosophies here, and I would like to talk about that for a moment, because I'm going to use an example. I think that in your submission you actually say that concerns are “largely unfounded”, yet we've heard concerns around the scope of the bill being too narrow, concerns around how clearer definitions are required, and concerns about what is not permitted. We've also heard implied versus express consent concerns. I can go on.

There are these two different philosophies. One is saying that we just need to fix the problems we're having with these abusive communications. Then there are those who say that we should decidedly keep it broad.

I'm going to go to the international community. As I understand it, the bill we currently have before us assumes that all electronic communications are basically unwanted spam, and it really prohibits commercial electronic messages. If I look at, for example, the U.S. legislation, it applies to e-mails that are sent in violation of an individual's opt-out request and are fraudulent, false, and misleading. If I look at Australia's, as I think my colleague mentioned, it applies to a defined list of commercial electronic messages that relate to direct marketing. The words “direct marketing” again show up in the Singapore spam act. Could each of you talk about this?

Perhaps we'll start with Mr. Fewer, because I think you were on the side of it being broader, and then perhaps Mr. Fraser and Mr. Lawford can talk about a philosophical view. What we don't want to do is penalize legitimate commercial communications here in this country. We don't want to have the situation where those outside of our country have access to people inside of our country with e-mails, access that we don't legitimately have.

Mr. Fewer, could you perhaps comment? And then we'll move on to others.