Industry Committee on Oct. 7th, 2009

[Philip Palmer]

We recognize that any limitation on speech—and that includes commercial speech—has to comply with the charter. Based on our analysis, we believe this meets the requisite charter tests. We think it's charter-compliant.

[Dave Van Kesteren, Conservative, Chatham-Kent—Essex, ON]

You mentioned earlier—and this is incredible—that 75% to 90% of e-mail is spam. You're absolutely right, Mr. Chair, we're very fortunate. Maybe the thing to do to get politicians behind this is to allow the spam to come through.

[The Chair, Conservative, Michael Chong]

Mr. Van Kesteren, just to make the point, my wife uses Hotmail. If you log in to your Hotmail account and you look at the spam folder, that will give you an idea of the amount of spam coming in. For every message she receives, she's probably getting 20 spam messages. It's all being filtered out, but somebody has to pay for the cost of storage. Somebody has to pay for the bandwidth, and that all gets passed along.

[Dave Van Kesteren, Conservative, Chatham-Kent—Essex, ON]

I understand that this will protect us from spam inside the country, but we won't have that protection from outside the country. How much will the percentage change once we enact the bill and get this thing rolling? What can we expect to see? Can we expect to see 50%, 40%?

[André Leduc]

The legislation is quite similar to that which was enacted in Australia a few years ago. They saw an immediate reduction in the amount of spam that originated from Australia. They dropped out of the top ten spam-originating countries almost overnight. We know—because we lack legislation—that there are some fairly significant spam operations running within our borders. We expect that this legislation will address them. We have attempted to put into this legislation the necessary tools for enforcement agencies and a private right of action. This will allow the enforcement agencies to cooperate with their counterparts on investigations, and the private right of action could be exercised outside our borders.

[Dave Van Kesteren, Conservative, Chatham-Kent—Essex, ON]

I don't quite understand this. What protection do we have against these operations setting up umbrella companies to bypass all this? Is there a part of the legislation that deals with this problem?

[André Leduc]

Clause 6 requires people to identify themselves when sending out a commercial electronic message. They also have to identify the company on whose behalf they're sending the commercial electronic message. For example, if The Bay hires an e-mail marketer to send out an e-flyer, the message has to identify The Bay—who they are, where there head office is, all that fun stuff. Some of this would be determined in regulations. It also has to identify the e-mail marketer. You know not only who you're getting the message from, but also who's represented in the message. We thought that was important.

[The Chair, Conservative, Michael Chong]

Thank you, Mr. Leduc. Thank you, Mr. Van Kesteren.

Mr. Masse.

[Brian Masse, NDP, Windsor West, ON]

It's really a privilege for somebody else to be able to use your Internet service, your equipment, to send you a message. I almost thought that people should be getting a fee for getting an advertisement sent to their system.

You've made some changes here. I want to get an idea of what you think the difference will be between the existing legislation and the new version. What's going to be the difference in the amount of advertisements or spam? There's a very thin line between the two. What's the difference between enacting it with your changes or without them?

[André Leduc]

To be honest, from my point of view we're not going to lose much. I think most of what we've put in there are allowances for legitimate businesses to carry on and use this platform to communicate with clients and prospective clients. In terms of getting after the actual spammers, we're not really losing anything.

Make no mistake, this is the most advanced, in terms of the consent regime, anti-spam legislation anywhere in the world because we did take the time--it took us a little too long--to educate ourselves from the best practices elsewhere in the world and the mistakes that they made. We talked to the Aussies, we talked to the New Zealanders, we talked to the Americans, we talked to the EU and the U.K. and asked, what works best and what doesn't work; what isn't working, and how would you suggest we address it as we develop our legislation?”

Again, most of the amendments here are stuff that will enable the legitimate enterprise, but we're still getting every one of the bad spammers.

[Brian Masse, NDP, Windsor West, ON]

There has been discussion about the process from here on. The bill, if it passes through the House of Commons, then goes to the Senate. If there's an amendment, it comes back to the House of Commons for that amendment, and then royal assent. You're talking about six months worth of regulations to finish off. I'm a little bit concerned about the extra time you've provided--the three years--and then reversing the 18 months. Will that compromise some of the ability to get at some of the spam right away? Because that's a long time. Can you reassure us or provide some evidence that it's not going to get away from us?

[Philip Palmer]

I would dare say that there is not one of the horrible spammers out there who even pretends to have had any kind of a pre-existing relationship with the consumer.

[Brian Masse, NDP, Windsor West, ON]

Okay, that's critical. Otherwise, we're lengthening this out to an unbelievable time.

I didn't see it, and I could have missed it, but usually legislation has a suggested time to come back to Parliament. I didn't see it in here. Did I miss it? Why is that not in this legislation?

[André Leduc]

To be frank, we were advised not to put it in there and that the committee would do it.

[Some hon. members]

Oh, Oh!

[André Leduc]

In most other legislation that we've seen, they'll come back and report after either two or three years to see, as was the case in Australia.... They reported in 2005 and they've recently gone through a parliamentary review of their legislation. We're absolutely open to doing the same. I'm not saying we've got a piece of legislation now that's 100% perfect, and we may need to make changes five years down the road, absolutely.

[Brian Masse, NDP, Windsor West, ON]

That's fair enough. I always say that if I was perfect I wouldn't be working here.

I do want to have a parliamentary review again, and I think three years would be appropriate, because the technology moves rather quickly. But I guess the difficulty we have now is that if it's 36 months it's hard to measure the business to business that's going on. So if we reduce that to, say, two years, how much of a compromise do you think that would be in terms of a stress on the industry, instead of the 36 months?

[André Leduc]

Do you mean in terms of limiting that transitional provision? Again, it's a provision for legitimate businesses that have an existing business relationship. It's really about the small and medium sized enterprises: the real estate agents, your insurance broker. It's to give them a little bit of time. They don't have lawyers and offices and the adaptive technology to be able to adapt to this. So it allows them to catch up to the technology.

What's important about that 36 months is that the clock starts ticking upon coming into force, so the window gets shorter and shorter until those 36 months are up. Then the 18 months is the vehicle that stays in the legislation.

[The Chair, Conservative, Michael Chong]

Thank you, Mr. Leduc.

Thank you, Mr. Masse. Perhaps that might be an amendment of yours to the bill.

I'd ask members, if they have amendments, both additional amendments from the government or amendments from the opposition, that you first consult with legislative counsel--our legislative clerk is here and legislative counsel as well--that you get your amendments to the clerk by end of day next Wednesday. That's not to preclude you from tabling amendments from the floor when we go clause-by-clause the first Monday we get back, but in order to be efficient, if you have amendments, get them to the clerk by Wednesday of next week. That will allow her to order them, to translate them, and to have them all together for us when we go clause-by-clause two weeks from now, on Monday, October 19.

Without further ado, we'll now go to Mr. Lake.

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

Thank you again, Mr. Chair.

I'm just going to take a moment to thank all the departmental officials, the ones at the table and the ones not, who have put so much time into this. I know this is a fairly technical bill and there are a lot of considerations in this, and I know you've put a lot of time and effort into it. So thank you for that.

You have addressed referrals in here. In my previous life I was in sales and I know how important referrals are. When the witnesses who spoke about it were talking about it, it was one of the things that raised a bit of an alarm bell for me. So I'm glad to see you've addressed it here.

It is a little circuitous, as I look through it trying to figure out exactly who we're referring to here in subclause (5.2). Maybe you could put it in practical terms and give an example of how it would work under this change.

[André Leduc]

Basically the idea is that we put a box around referrals. We're allowing them, but we're saying they have to following the following rules. The following rules are these: for anybody to make a referral, they have to have that family or personal relationship with the person they're referring.

I apologize, as this is going to get circular because of the language.

But the important thing is that we are limiting the referral to the family and business relationship. The person who is sending out that e-mail to the person who is referred to has to name the person. So if Mr. Masse here is a good friend of mine and you're my insurance broker and I tell him I've got a buddy he might be interested in and I provide you with his e-mail address, when you send Mr. Masse the e-mail you have to name me in that e-mail so he knows who referred me and where this is coming from, so it is not just out of the blue.

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

To clarify then, what kind of relationship is required of you and me at that point in terms of that? So you and I have an existing business relationship, or could you be my brother and not have an existing business relationship?

[Philip Palmer]

You two have a business relationship and those two have a relationship based on friendship or family.

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

I just want to clarify, because that's the way I read this too. My concern is that as a former salesperson--I sold Oilers hockey tickets--if my brother and I didn't have an existing business relationship, he might very well say to me that he has a friend who is a huge hockey fan and wants me to send him an e-mail. But that's not covered under this change here. I just want to clarify that.

[André Leduc]

Not the way we've boxed the case. You have to have an existing and ongoing business relationship, so you have to be either my insurance agent or you have to have that expressly consented-to relationship for me to refer somebody to you.