Thank you, Mr. Chair.
I'm a lawyer. I practise a mix of competition law and commercial litigation. I'd like to think that it's my competition law experience that is going to drive a lot of what I'm going to tell you today.
I'm going to divide my comments on CASL into three categories, which I'll call “the good, the bad, and the ugly”.
What is the good? Generally speaking, the provisions added to the Competition Act by this law are good. It's a good thing. It's good that we have bulked up the Competition Act to deal with misrepresentations in electronic communications. Also, I generally think the provisions about computer programs are good. I also think that having a robust unsubscribe requirement for electronic communications is a good thing.
I'm going to turn, though, to the bad, because of course what this committee is about is reviewing and proposing potential changes to this law.
As you know, CASL establishes an opt-in regime for commercial electronic messages. It does not distinguish between one-off emails and bulk emails. In fact, it was deliberately drafted so as to apply to even a single email. Basically what this law does is to make it presumptively unlawful to use email—and I'm using “email” as a shorthand for any kind of electronic communication that's captured by the act—for any commercial purposes.
I see four problems with this.
The first relates to the scope. I won't spend a lot of time on that, because I suspect you've heard a lot about it. What we're really concerned about, I would think, is bulk emails, people sending out large amounts of emails, yet CASL applies if I as a lawyer send an email to an in-house counsel saying, “Hey, I'd like to pitch my firm to do some work for you”, or even if I send an email to a lawyer to say, “Let's get together for lunch”. It also applies if I send an email to a neighbour asking if they'd like to buy tickets to a gala dinner, say, for a kids' sports team. That would be a commercial electronic message. In theory, I should be putting an unsubscribe in there.
All of these are likely commercial electronic messages. All of them, therefore, have all of these requirements superadded to them, yet I think no one would say in these situations, one-off emails between people in these circumstances, that all of this apparatus is necessary.
I'm going to turn now to a more fundamental point. In my submission, the mechanism in CASL is inconsistent with a free-market economy. Freedom isn't just about freedom of political speech. In fact, I would say that, for most people, freedom means the freedom to go about their daily lives. This includes economic freedoms, the freedom to start a business, to look for clients, to market that business, to tell people about new and innovative products that you've created, and to offer them on the market.
The quid pro quo for my freedom and the freedoms of Canadians to start businesses is that I'm going to get publicity from other people exercising their freedoms. I might not be that interested in that publicity, but if I want the freedom to tell people about my business and what I do, then I have to accept that I'm going to get stuff that I'm going to have to put in the trash—in the case of snail mail or flyers that are paper—or hit delete on. Of course the other thing is that one person's junk mail or spam is another person's coupon-clipping opportunity.
A corollary to this is that this law reduces competition. In fact, it does so, I'd say, deliberately. That makes its title, frankly, the opposite of what it is. It's almost Orwellian. It parodies some of the purposes of the Competition Act. It talks about, “An Act to Promote the Efficiency and Adaptability of the Canadian Economy...” but, in fact, what CASL does explicitly is privilege incumbent firms over new entrants.
Competition is about new entrants coming into the market offering new products, innovative products, expanding entering markets, and competing with the incumbents, and maybe even unseating them as incumbents.
CASL privileges the relations between incumbents and their clients over those with new entrants who would want to establish new relationships with new clients. It does so by erecting what is effectively a barrier to entry. It says you can't send a commercial electronic message. You can't email people to tell them about your new and innovative products unless you have first somehow contacted them and got their consent to do that.
It raises the costs to a new business and a new entrant to tell Canadians about new and innovative products, and that reduces competition. It's built into the act. It's not a bug. It's a feature.
You've probably heard from other witnesses, so I'm not going to belabour the point, but there's a very serious constitutional argument about this statute, that the mechanism that makes it presumptively unlawful to use email for commercial purposes is inconsistent with the existence of any commercial freedom of speech. As we know, our courts have said there is such a thing as constitutionally protected commercial speech. It's not as strongly protected as what I'm doing today—political freedom of speech—but it is protected.
You may also have heard issues about the effectiveness of CASL, so I won't spend a lot of time on that but I will note that most spam comes from outside of Canada. CASL can't really touch that directly; we have to rely on our partners abroad to deal with that.
The other thing is that some of the absolutely worst kind of spam that we get—phishing messages trying to get us to log on to things and give over our passwords—might not even be caught at all because it's not a commercial message. It's not about buying and selling a product. It's just flat out fraud. It's already probably a criminal offence under our criminal law, but CASL doesn't really touch it. In the end, CASL goes after legitimate businesses here in Canada, loads them up with restrictions that you've probably heard a lot about, and probably doesn't do very much for us in return.
What would I propose in its place if I had the decision-making power? I'd say we should have a very strong opt-out system with very robust unsubscribe requirements that are enforced. The CRTC is enforcing the unsubscribe requirements, of course.
I'll turn quickly to the ugly—the things that need to be fixed a bit, as opposed to just changed fundamentally. First is the private right of action. There are three problems with it. The first is it's an open invitation to class action lawyers to start actions against reputable companies. They're not going to go after the Russian brides and the spammers outside of the country. They're going to go after Air Canada, WestJet, and all the rest of them.
Second—and this is troubling—because you can get out of a class action, although you have to do it before it starts by entering into an undertaking with the CRTC, it gives the CRTC a big tool, a big club, to get money out of companies. What's wrong with that? Well, anytime you create incentives for a regulator that give them a club to get money, there's a danger that they'll try to do that. I'm not saying they will. I'm saying there's a danger. It's like an invitation for them to do it.
The third is a nit, but in its application to section 74.011 of the Competition Act, there's no materiality threshold requirement in that provision. That means you could have a cause of action and lawsuit over an insignificant, trivial misrepresentation or inaccuracy in a subject line of an email.
I suspect my time is over. I'll just mention quickly that the warrantless searches provision, notice to produce, is almost certainly unconstitutional. The act is full of what I'd call statutory interpretation nightmares, but I don't have the time to take you through them.
Thank you.