Thank you, Mr. Chairman.
I'm pleased to be here today as the new director general of the electronic commerce branch at Industry Canada, having recently replaced Richard Simpson, who appeared alongside Minister Clement and Assistant Deputy Minister Helen McDonald in June.
As you indicated, I'm joined here today by our legal counsel, Philip Palmer, and from my staff, André Leduc.
Industry Canada has made a commitment to increasing confidence in the digital economy, to clarifying the rules of the domestic and international markets, promoting the adoption and use of e-business and eliminating barriers to the use of e-business. The electronic commerce protection bill represents an importing step in achieving these objectives. Our department is pleased with the support this initiative has received in the testimony and briefs that have been submitted to the committee.
It is no surprise that there has been such interest in this legislation, as the Internet is now the communications platform of the emerging economy. ECPA is about more than just the nuisance of spam; it is about malicious and detrimental activities that dissuade Canadians and Canadian businesses from taking part in the online marketplace.
I should note that ECPA could not have been drafted without the important work of the task force on spam and their recommendations, as well as the experience shared with us by global partners, specifically New Zealand, Australia, and the United States. By working closely with these counterparts, Canada has drafted world-leading legislation based on the best and most effective aspects from legislative initiatives from around the world.
Spam and on-line threats come from both inside and outside Canada. The current bill contains important provisions designed to protect Canadian consumers and businesses from the most dangerous and harmful types of spam and will introduce a regulatory system that will protect the privacy and personal safety of Canadians in the on-line environment. The bill will include a set of clear rules that will benefit all Canadians and that will increase their trust in on-line communications and electronic business.
I would like to take this opportunity to address a couple of the common misperceptions about the legislation.
The committee has heard a number of witnesses express concern about the consent regime. It should be noted that there is no time limit to express consent. Once an individual has provided express consent to a person, the consent can only end when the individual opts out or unsubscribes. The 18-month period with respect to existing business relationships allows companies to imply consent in order to give them time to obtain the individual's express consent.
Secondly, with regard to the private right of action, some witnesses have indicated that they do not see a need for it. We believe this provision provides an important mechanism that will allow individuals and groups of individuals to pursue violators and enable telecommunications service providers and Internet service providers to pursue those who threaten their networks. It would, for example, enable a bank or financial institution to take civil action against phishers who falsely impersonate their organizations in an attempt to defraud their customers.
Mr. Chairman, we have examined the concerns expressed before your committee and have prepared motions respecting a number of them. At Mr. Lake's request, we have distributed to all members an annotated version of the bill indicating the amendments proposed by the government. More than 40 amendments are planned, a number of which are of a technical nature.
Our purpose is to strengthen confidence in online commerce, and the opportunity for public comment presented by the committee's study of Bill C-27 has been most helpful. Of all the areas discussed, those that provoked the most comments were those relating to the perceived breadth of the legislation and the requirements respecting express and implied consent. We considered these concerns carefully, and amendments are being proposed to better focus those provisions that were considered too broad.
In brief, the amendments deal with the definition of commercial electronic messages, existing business relationships, business-to-business relationships, third party referrals, and the installation and update of programs and applets.
First, with regard to commercial electronic messages, we recommend expanding the range of situations in which the sending of e-mails is excepted from the requirements of express consent. For instance, correspondence in reply to an inquiry is clearly exempt, as would be ongoing correspondence relating to insurance policies, warranties, subscriptions, and other longer-term relationships.
Secondly, amendments have been drafted concerning existing business relationships. For example, for those relationships that are in effect prior to the act coming into force, a transitional or grandfather clause will extend the implied consent regime for a period of 36 months to allow commercial entities time to contact existing clients and obtain their express consent for future communications. Similarly, we have clarified by way of proposed amendment that the 18-month period concerning an “existing business relationship” referred to in subclause 10(4) commences on the date that the subscription, membership, account, or loan has been terminated, as opposed to the beginning of that relationship.
You will also find an amendment that clarifies that in the instance of the sale of a business, the purchaser is deemed to have an existing business relationship with the seller's clientele.
In the context of business-to-business relationships, we have suggested expanding implied consent to encompass the conspicuous publication of an electronic address, such as on a website or in a print advertisement. In these circumstances, the sender's message must relate to the business or office held by the recipients. Implied consent would also be extended to cover situations where it is reasonable to believe that consent has been given—for instance, in giving out a business card or providing an e-mail address in a letter.
We have recognized the importance in certain industries of being able to contact referrals through e-mail and have drafted an amendment to this effect. In the document before you, you will find a provision permitting under certain conditions unsolicited commercial messages that are follow-ups to third party referrals.
In terms of consent to installation of computer programs, you will find proposed amendments to clarify that automatic updates—for example, daily or weekly updates to anti-virus software—will not require consent for each update as long as this is set out as part of the original contract under which the software was installed.
Similarly, you will find that there are proposals to ensure that running applets such as JavaScript or Flash programs will not require express consent each time they are run.
Last, during witness testimony, a suggestion was made to have the administrative monetary penalties, or AMPs, provision amended to provide further assurance that companies that make an honest mistake will not be subject to heavy fines. It has been suggested that the CRTC be given the capability to suspend AMPs for a specified period of time, and that if the business does not violate the act again during that time period, the AMP could be lifted. As a result, we propose that clause 25 be amended to indicate that the CRTC has the ability to reduce, suspend, or waive an administrative monetary penalty.
I want to thank you for your review of the Electronic Business Protection Act. We are convinced that this work will result in healthy regulation and that the bill will take into account the interests of businesses and consumers in an equitable manner.
We welcome the committee's questions. Thank you.
