Evidence of meeting #75 for Industry, Science and Technology in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was casl.
A recording is available from Parliament.
Director, Intellectual Property and Innovation Policy, Canadian Chamber of Commerce
It was said earlier today. It's the scope of what exactly a CEM is. Narrow the scope. Give a definition, and allow business to conduct business. The business-to-business communication really needs to be pulled out of it.
Liberal
Liberal
Terry Sheehan Liberal Sault Ste. Marie, ON
Thank you very much.
There have been some very thought-provoking presentations. I'm glad we are reviewing this legislation, because we had a discussion as to whether or not we should. I'm glad we're doing this.
In particular, both Mr. Lawford and Mr. Masse mentioned the task force created in 2004 to take a look at the anti-spamming legislation. If you all recall, there was another thing that was developed in 2004: TheFacebook, which became Facebook.
This piece of legislation is to regulate certain activities and discourage a reliance on electronic means of carrying out commercial activities. Fast forward to now with Facebook, Snapchat, Instagram, and all these new ways we're connecting with each other. How will this piece of legislation need to be amended to deal with social media?
Executive Director and General Counsel, Public Interest Advocacy Centre
Mr. Smith already provided you the answer. There is a CRTC regulation that allows closed-loop social networks: if they post the information about how contacts will be exchanged on the site, they're pretty much exempt from this. At the moment, they're not really covered when you're within Facebook. I believe that's why you're not getting Facebook appearing before you here to say this thing is impeding their business.
I know this because we fought against it. We went to the folks at Industry Canada at the time and said we think there should be some kind of control from this act within Facebook and these other platforms, and they said no. At the moment, it's pretty much fair game as long as they post the rules.
Liberal
Terry Sheehan Liberal Sault Ste. Marie, ON
Yes, because Facebook is developing exponentially as a marketer's opportunity. We all use it, even politicians, but the business community and chambers of commerce are using Facebook more and more to communicate with their members. It's getting more complex as it goes from just family and friends looking up an old high school buddy, to really developing your business.
I'm not sure what we should or should not be looking at as it relates to Facebook, because people are still getting unsolicited emails, in particular young people like my daughter. It seems generational. The generation of young people really aren't too concerned about all this sharing, in my opinion. It's anecdotal, yet someone like my father, who is a senior citizen, is very concerned. Some of them are clicking on various messages, whether it's Facebook or emails. They're getting those blue screens of death, if you will. That is a concern.
Another thing I wanted to ask about was particular exceptions related to small business. From the Chamber of Commerce, Scott Smith, do you have a number of chamber members who have been hit with this piece of legislation that you would know of through your surveys and could provide to us?
Director, Intellectual Property and Innovation Policy, Canadian Chamber of Commerce
I don't know if anybody has actually been hit with it. The question is more that they're unclear as to what applies. If you look at one of the small business exceptions, you're supposed to be able to send notices that are warranty related, related to a transaction, or required for legal or juridical obligations. At the same time, there's a regulation in there that says you have to add the unsubscribe mechanism in all the prescribed information. It should either be exempt or not. It's kind of halfway, which makes everybody question if it's a CEM. We don't actually know.
What ends up happening is they end up contacting their customers in other ways. They'll either phone them, or they'll put out an advertisement of some kind, or they'll contact them in a different way. They'll say, “We don't know what to do here, so we're not going to use that exemption.”
Liberal
Terry Sheehan Liberal Sault Ste. Marie, ON
It's interesting. At our last meeting where we dealt with this, the CRTC mentioned they have opened about a million cases. In those cases, generally they send a letter. I suppose a letter could be snail mail or electronic—I didn't ask that—but it's sort of a cease and desist, like “Don't do that”.
The question is: is that an effective form for dealing with people who are issued these things, or is it an educational thing from the federal government, where basically both the consumer and the person sending the spam aren't aware of it, and they make a mistake, and then they don't do it again?
Liberal
The Chair Liberal Dan Ruimy
Just like that, you're out of time.
We're going to Mr. Maguire. You have five minutes.
Conservative
Larry Maguire Conservative Brandon—Souris, MB
I want to thank all the presenters for their presentations today as well.
This is most interesting. I'm not a regular member of the committee, so I've found the discussions, examples, and so on pretty interesting so far. I appreciate seeing that my Liberal colleagues appeared to be concerned about the small businesses, but I notice that none of them wanted to extend the discussions around the concerns of small business that we've had, that being the one of corporate tax grabs.
But we're not here to discuss that today, so I'll move on.
Conservative
Larry Maguire Conservative Brandon—Souris, MB
I have a question for Mr. Lawford.
I just want to say, don't you think calling small businesses lazy, like you inferred in your presentation, is a little over the top? It sounds to me like the Prime Minister's comments about small businesses during the election when he said that people form small businesses to avoid paying taxes.
Given the concerns expressed by the other panellists, including one that represents all of these small businesses in Canada, do you think the concerns of the CASL that are being expressed are without base?
Executive Director and General Counsel, Public Interest Advocacy Centre
I didn't say that small business owners are lazy. They certainly aren't. I said that business practices where you are not getting consumers' consent post the law are lazy, and using old lists or buying lists that have no relation to your consumer base is a prohibitive practice, and that's what's lazy.
What should be the optimal environment, privacy versus business, is really at the base of your question, I think. The difficulty always faced when you're a legislator is trying to balance that public interest as expressed by different groups, and so business is quite right to say they want to just do business and we can trust them. The trouble is that we had 10 years of getting to this law, and it was pretty obvious you couldn't trust business because of the group send, if you will. There were so many businesses trying to reach people that the overall tsunami effect on consumers was just too much. When it gets malware and other bad payloads mixed in with unsolicited commercial messages, it's a stew that's just impossible for the consumer to manage at the consumer end.
I didn't mean to imply that commerce is bad, as I said. We think that, if consumers are in control, they'll receive the messages they want, they'll buy the products they want, and two years after a contract ends is a pretty long tail to be able to continue to try to entice that customer back to do business with you.
External Counsel, Regulatory and Public Policy, Public Interest Advocacy Centre
If I may, I'll just add that the CRTC is also not just sitting on their hands and scrolling through emails and saying, “Oh, there's no unsubscribe button here, let's go after that company”. All of their investigations are triggered by complaints, so these are Canadians who are taking advantage of the current regime and are filing submissions and complaints saying, “Hey, I got this. I didn't want it,” or, “It was misleading; it was deceptive. Could you look into this?”
Partner, McCarthy Tétrault, As an Individual
Mr. Maguire, could I respond to that question as well?
Conservative
Partner, McCarthy Tétrault, As an Individual
Very briefly, the problem for small business—and for large businesses, but for small business—is that this law is too complex. You have a law that's very difficult to read. You have two sets of regulations, and because of all the difficulty, you have a RIAS that is probably longer than every RIAS in history. You have guidelines from the CRTC. Every time I sit down I have to reread it because it's so hard to keep in your head because it's not logical.
I've been in rooms where businesses have tried to figure it all out, similar to the representative from Desjardins. You have 25 people in a room, including five lawyers, going through every kind of email that's sent and trying to figure out if it's a CEM, trying to figure out how you get consent, and trying to figure out if you have the right unsubscribe. It takes that many people to try to figure it out, and you still can't get it right. To impose that on a small business, where it's not understandable.... These small businesses are not securities lawyers or tax lawyers, and this legislation is that complicated. Leaving aside just how onerous it is to comply, which I've dealt with and others have dealt with already, it's so complex that the average small business cannot figure out what they need to do.
Conservative
Larry Maguire Conservative Brandon—Souris, MB
I appreciate that.
This question is for Ms. Brown and Ms. Diallo—and for Mr. Smith too, if he wishes.
You mentioned, Ms. Diallo, that you had three or four things we could look at, but I believe you indicated that some of them should be totally withdrawn. Or perhaps I will ask you that: are there some that should be?
Senior Legal Counsel, Desjardins Group
I think I was referring to the private right of action.
Senior Legal Counsel, Desjardins Group
That for sure should be completely pulled from the law, in our opinion.
Liberal
Mary Ng Liberal Markham—Thornhill, ON
Thank you very much. That was really informative.
My riding is probably not that different from those of some of my colleagues'. It's a mix of start-ups, technology companies, large organizations, Canadian headquarters for multinationals, and then people—seniors, consumers, and just people. I've heard a lot here, and I'm wondering if we could talk about that balance.
The work that we need to be doing as a committee, in looking at this legislation, is to really examine how we might improve it so that we can actually get to the objectives that are intended. We heard about cybersecurity. We heard about the increase in malware. That is, of course, alarming, but we also want to make sure that there isn't a legislative regime that will chill the effect of good business practices, good competition, and the ease with which businesses do what they need to do, which increasingly now is digital and electronic.
Mr. Lawford and Ms. Lau, there is some suggestion by others here to narrow the scope of definition of a CEM, and to therefore be more focused, alleviating some of the unnecessary obligations we've heard of in the legislation for small business owners and perhaps for start-ups. What do you think? Could that work?