I would like to personally thank Andrew for that.
Mr. Chair and members of the committee, thank you for the opportunity to talk about Canada's anti-spam legislation.
I'll start by saying that members of the Retail Council are very supportive of anti-spam legislation that actually targets fraudulent malicious spammers—the Nigerian prince who is asking for money and that sort of thing. What it does ultimately is it raises confidence in the digital economy. It raises confidence in legitimate marketing activities, but unfortunately, I think CASL has gone far beyond its original intent, and as many of the other witnesses have expressed just now, in the end has had limited success in targeting the Nigerian princes. I shouldn't pick on that, but I just personally received that email myself.
Unfortunately, this costs businesses significantly, not only in terms of systems to comply with the legislation, but also in terms of the ability to do certain types of marketing because they're erring on the side of caution given the way that CASL has been drafted. But that's all right because RCC has a five point plan to solve all of this. I will, without further ado, get right into that.
However, before I begin, I would just like to quickly introduce the Retail Council of Canada (RCC).
The retail industry is the largest private employer in Canada. Over 2.1 million Canadians work in our industry. In 2016, the sector generated wages estimated at more than $73 billion, and the sales of the sector reached $353 billion. The RCC is a not-for-profit, industry-funded association representing small, medium and large retailers in communities across the country.
One of the things that perhaps differentiates the Retail Council from some of the other witnesses here and some other associations is that it is uniquely retail. It represents all sizes, from general merchandising to grocery to hardware to apparel, and from family-owned independent businesses all the way to the largest retailers that you would all recognize.
RCC has a five-point plan to remove the unnecessary red tape in CASL, help contain costs for retailers, and offer the most competitive prices to Canadian consumers:
Number one, only cover activities that are clearly intended to engage the recipient in a new commercial activity.
Number two, provide common-sense clarifications to CASL's unsubscribe provisions.
Number three, allow for additional flexibility in the definition of “express consent”.
Number four, include a consideration of intent.
Number five, repeal the private right of action provisions permanently.
On the first point, covering activity that is clearly intended to engage the recipient in a new commercial activity, the definition of “commercial electronic activity” or CEM should be amended to include only messages that are principally intended to engage the recipient in a new commercial activity.
The challenge here is that many of our members—again, erring on the side of caution and sometimes based on the guidance and advice of the CRTC and on jurisprudence—are concerned about some of the normal emails they send. For example, their message might be providing a receipt or confirmation of purchase, or something along those lines, and then at the bottom it happens to have a caption, as part of the signature block, that says, “shop at our store”. It might contain a link to their website, where, as a separate activity, the consumer may or may not purchase something. Our members worry that it might constitute a commercial electronic message and therefore be covered by CASL.
Clearly, the legislation wasn't meant to cover that sort of thing. The RCC respectfully requests that the committee consider making a recommendation to clarify the legislation to ensure that kind of messaging is not covered.
To the second point, on common-sense clarifications to CASL's unsubscribe mechanisms, most consumers identify by brand and may not be aware that a certain company owns several retail outlets or several brands. I won't name any specifically, but if a consumer were to sign up for a specific brand's messaging, and then wanted to unsubscribe from that messaging, the way that the legislation is currently written it is unclear. Certainly, many of RCC's members err on the side of caution, which means they are unsubscribing consumers from all of the brands that the company owns, which is neither in the business interest of the retailer nor in the interest of the consumer.
For example, I subscribe to CEMs from a toy store, and that toy store happens to be owned by a hardware store that has a number of other stores. I want to unsubscribe from that toy store's messages. Right now, the way that it's being interpreted by most of our members is that they are unsubscribing from every message, every brand, that the hardware store owns, and that's not in the interest of business nor in the interest of the consumer.
The same thing goes with the type of messaging. Perhaps I want to receive a newsletter from that toy store, but I don't want to receive another type of messaging from that store. There should be a clarification in the legislation to allow consumers to unsubscribe specifically from brands or types of messaging for which the consent was given in the first place, and it should be clarified that they're not inadvertently unsubscribing from everything.
To my third point, on additional flexibility on the definition of “express consent”, the current definition appears to require that every conceivable purpose for consent be included in the request, which is unwieldy and very bulky. The way it's being worded now by many of our members is very lengthy and refers to emails and whatever other types of messaging. I think the legislation should be amended to specifically allow for reasonable, similar types of messaging so that it's in the best interests of business and consumers that the consent request is very simple and straightforward, and not this big legalistic blurb. My apologies to the attorneys on the panel that it be easy to read.
Include a consideration of intent. Companies that are trying to comply and that are 99% compliant, that may have inadvertently made a mistake and sent one message, are not the same as that nasty, fraudulent, malicious spammer, and therefore should not be subject to the same compliance and enforcement actions and penalties. The legislation should include a consideration of consent. Finally, the private right of action provisions should be repealed permanently. Canadian retailers need to operate in a certain and stable environment. I think that would only serve to benefit litigators.
There is one final thing I'd like to flag to the committee, although it's not part of the five-point plan. I love my loyalty programs. Most Canadian consumers and businesses love them. Loyalty programs are challenging right now. It's a bit of a grey area in terms of whether you can send messages to members of loyalty programs. I just wanted to flag that and let you know that the Retail Council will be working with members of former Industry Canada, now ISED, and CRTC to solve that problem.
In conclusion, thank you once again for the opportunity to share with you the retailers' perspective on Canada's anti-spam legislation.