Industry Committee on Sept. 26th, 2017

[Maxime Bernier, Conservative, Beauce, QC]

Yes, I understand that. Most important for me is that this debate be public. I don't think we have to do it at 12:30. Maybe we can schedule another meeting to have a public discussion about that motion.

[The Chair, Liberal, Dan Ruimy]

Mr. Longfield.

[Lloyd Longfield, Liberal, Guelph, ON]

We could discuss the handling of this at 12:30 p.m. and figure it out. We have witnesses here from whom I'm dying to hear some more information.

[The Chair, Liberal, Dan Ruimy]

Okay, we will continue the interview with the witnesses, and then when we go in camera we can have a further discussion, if that's okay with you.

[Maxime Bernier, Conservative, Beauce, QC]

Yes and no. I know that the witnesses are here, and it's very important to have the discussion.

Let's have further discussion, and we'll see when we discuss it. Maybe at 12:30 we have another agenda. Having the public discussion can be done at another time.

[The Chair, Liberal, Dan Ruimy]

Thank you.

If I understand correctly, we're going on to more questions.

[Some hon. members]

Agreed.

[Maxime Bernier, Conservative, Beauce, QC]

Yes. It's okay from the standpoint of my time.

[The Chair, Liberal, Dan Ruimy]

We are moving, then, I believe, to Ms. Ng. You have five minutes.

[Mary Ng, Liberal, Markham—Thornhill, ON]

Before we start, I also want to acknowledge a couple of wonderful students here from the University of Toronto who are shadowing us parliamentarians today.

With that, I'll begin.

You talked about the legislation being technology neutral so that it enables you to look at other forms of spam that are not just email. My question is, does the public know when they are getting a range of spam? I'm thinking about people in vulnerable communities, seniors, as an example. We are seeing a higher rate of usage and participation in social media such as Facebook by seniors. While enforcement allows technology neutral, is there a way for the public, particularly people such as seniors, to report and to understand even, that they can report and that this actually applies to them?

[Steven Harroun]

I'll start and then go to my colleague.

We talk about compliance and reach out to the business community and individuals to comply. Another side of what we do is ensuring that Canadians are aware of things that are happening.

We're very fortunate at the CRTC. As an independent agency, we're very active on Facebook and Twitter. We do lots of consumer alerts, if you will, along with my colleagues at the office of consumer affairs, to let Canadians know that this activity has happened, that this scam is out there.

We've all heard about the vacation scams and about the Microsoft scams for tech support, etc. We are very active in that space to let Canadians know: first, that this is what's happening; second, that this is what we've been investigating; and third, that if you have given us a complaint about a certain company, this is what has happened.

We try, then, to be active in the space to let Canadians know that they should be aware. Obviously, we can't solve all the problems of the world, but at least we can make awareness important. That's why in our social media space it's very important. As you say, it's no longer the tweens; it's everyone from 12 to 92.

[Mark Schaan]

I'll just quickly add—I'll give a shout-out for my colleagues at the office of consumer affairs—that the fightspam.gc.ca website has been a successful centralized point to receive consumer complaints as well as to provide information. They've received more than 1.1 million submissions.

Interestingly, the “unsubscribe” mechanism that's required in emails provides consumers with tools to control their commercial electronic messages, and 84% of Canadians, when surveyed by CIRA and Ipsos, said that they had used the opportunity of CASL to triage the emails coming into their inbox. For some that meant a hit of the unsubscribe button; for others it was, “No, I want to receive this and I'll continue to receive this communication.”

[Mary Ng, Liberal, Markham—Thornhill, ON]

Thank you for that.

Here is my second question. While I know that this is the work of the committee that is proceeding, both of your organizations have had quite a lot of experience with and work with this piece of legislation. As we proceed as a committee with the study, is there any advice you can give us around witnesses we should be reaching out to listen to, witnesses who can give us a perspective and help us understand the efficacy of the legislation and where it's working, and where it's not? Whether they are consumers groups or whoever, do you have any advice for the committee, both of you, on those we might consider calling?

[Mark Schaan]

I might start by saying that there was a task force working group originally on the Task Force on Spam in 2005 that tried to have a wide reach to get at this issue. It included.... I'll just note that the co-chairs were Roger Tassé and Michael Geist, but the member organizations were a broad range that included the Coalition Against Unsolicited Commercial Email, Amazon, Bell Canada, the office of consumer affairs, the Privacy Commissioner, and PayPal. All of these I think indicate that there is wide interest in the legal, academic, consumer, and commercial zones that rely upon this legislation, all of which have views, certainly.

[Mary Ng, Liberal, Markham—Thornhill, ON]

Do I have more time?

[The Chair, Liberal, Dan Ruimy]

No, not any more. You used it right there. I'll take your extra 10 seconds and I will pass them on to Mr. Stetski.

Mr. Stetski, you have two minutes.

[Wayne Stetski, NDP, Kootenay—Columbia, BC]

This is particularly for the CRTC.

The legislation contained language that would repeal the do-not-call list in order to bring it under the Electronic Commerce Protection Act, the ECPA. Is this still in the works and if so, when would that actually take place? Is the do-not-call list still current? Can people still send in complaints on that legally? What's the whole status on the do-not-call list?

[Steven Harroun]

You are correct. The statute allows for the provision of that. It's never been exercised. The national do-not-call list is also something that falls under my purview at the CRTC. It is very active. Canadians still register their telephone numbers and it's definitely more mature. It's been in effect since 2008, so we're almost at our 10-year anniversary, but we are very active on pursuing those who violate the do-not-call list rules. It's working in its own regime, for sure.

There is a provision and I'm certain my legal counsel can talk about that. It's never been exercised. The regimes are very different, so I think that would be an interesting discussion.

[Mark Schaan]

Go ahead.

[Kelly-Anne Smith, Senior Legal Counsel, Canadian Radio-television and Telecommunications Commission]

Okay.

The framework already exists within CASL to take out of the Telecommunications Act and all its regulations and decisions, the existing do-not-call and unsolicited telecommunications framework and to roll it into CASL. That could be done very easily by a GIC provision. There are really no changes that are required.

As my colleague suggested, the regimes are very different, since one is an opt in and one is an opt out. Before you did that, I would think that you would want to do a lot of consultation with the telemarketing community to see if they would be agreeable to that sort of provision.

I think that there would be a lot more additional authorities that would be available to the commission in order to deal with telemarketing regulations that do not exist in the Telecommunications Act. On that side, there would be pros and cons, but certainly, it should be done.

[Mark Schaan]

Super quickly and I know we're out of time. I just want to say that the original intent was an anticipation that voice-over Internet protocol calling would essentially replace telephone calls and that those would be considered electronic messages and therefore, come under CASL. That was the original intent for why the do-not-call suspension provisions are there.

[The Chair, Liberal, Dan Ruimy]

Thank you.

We actually have time for one round of five minutes each, so we are going to go to Mr. Jowhari. You have five minutes.

[Majid Jowhari, Liberal, Richmond Hill, ON]

I'm going to reframe my question one more time. Let me acknowledge that I understand that there is a scheduled review planned for July. I get that. I also understand that we suspended the PRA section and we combined the two.

In your statement, what you specifically said was that Canadian representatives from industry, academia, and civil society have raised concern over the scope of the PRA. As well you said, as noted in recent ISED consultation with stakeholders, there is a significant sentiment that some aspects of the law could be further clarified.

I have a two-part question. First, can you tell me what those top three concerns are? Second, can you tell me which aspect of the law you think needs further clarification? I believe those would be able to help us frame our discussion.

[Mark Schaan]

Yes, you're quite right.

The phasing was essentially as I indicated: the original regulations, then the malware regulations, then the PRA. I think the concern on the PRA is particularly related to the possibility of class action suits and legal liability that may arise from compliance. While a number of organizations and entities have attempted to be as compliant as possible, I think they fear that moving from a system, where potentially they're under a CRTC-type enforcement where there's an opportunity for a helpful exchange and maybe a warning letter, that it could move very quickly to a legal dispute, where potentially there may be a significant legal risk.

I think the zones where we hear the most concern is around this notion of consent. It gets at what the Privacy Commissioner indicated, which is that, in an electronic age, where potentially you're collecting a lot of different information for different purposes, what constitutes consent can be a challenge. Also, ensuring that when the consumer or the user has consented to the receipt of the electronic message, how explicit does that have to be to be able to send the messages? I think the concern about the PRA was that this would then become a litigious action that potentially raised a compliance risk and potential legal uncertainty.

[Charles Taillefer]

I want to add that what we've also heard is that the act provides for statutory damages. In terms of the actions that would be brought forward by individuals, there's compensation for actual harm done, but there's also prescribed statutory damages that can be awarded. That is based on.... Non-compliance, in and of itself, would be a factor in granting individuals compensation for that. What we heard from stakeholders is that was a particular concern in the context of the private right of action, specifically, where you didn't necessarily have to demonstrate harm, that statutory damages could be awarded simply for having received a commercial electronic message that you didn't consent to. For this you could be awarded compensation. That's what elevated that risk.