Canadian MP and Senator Champion Anti-Spam Bills

Two bills aimed at establishing strict national anti-spam legislation in Canada expired when the last session of Parliament ended in November without them being enacted, but the legislators who introduced the measures vowed to reintroduce the bills in the next session of Parliament, which is expected to begin Jan. 12, 2004.

The bills, as drafted, would subject people who violate the laws to hefty fines, imprisonment, or both.

Canadian Member of Parliament (MP) Dan McTeague, Liberal representative of the Pickering-Ajax-Uxbridge area of Ontario in the House of Commons, recently introduced a private member's bill to the House of Commons that would have created anti-spam provisions in the Canadian Criminal Code. A private member's bill is one introduced by an MP who is not a cabinet minister.

In addition, Senator Donald Oliver, a Progressive Conservative who represents the Province of Nova Scotia, introduced Bill S-23 to the Senate which, if adopted, would create a national No Spam List and provide for criminal sanctions against those who send spam to people on that list.

Efforts To Expand Spam-Fighting Arsenal

Canada has very limited methods of dealing with people who send unwanted e-mail. These methods largely involve:

• Launching a civil action for financial loss, which is generally only available to Internet service providers (ISPs); or
• Trying to invoke the criminal “mischief” provisions contained in the Criminal Code.

The problem is that these options are generally available only in instances in which spam interferes with or obstructs a person's access to data or use of a computer system, and the sender was “reckless” in that he or she understood that this would likely occur. (See Internet and Bulk Unsolicited Electronic Mail (SPAM) [July 1999], available at Industry Canada's Web site, at http://e-com.ic.gc.ca/english/strat/spam.html, last modified Jan. 22, 2003. Industry Canada is a government department involved in setting telecommunications policies in Canada.)

The initiatives McTeague and Oliver introduced are similar to others launched by national and regional governments around the world to crack down on distribution of unwanted, and possibly illegal, e-mail to consumers.

Early this month, the U.S. Congress passed a bill outlawing junk e-mail and providing for jail time and hefty fines for serious violators. The bill also creates a “do not spam” registry. The measure moves on to the White House, where President Bush is expected to sign it before the end of the year. Along with requiring an “opt-out” option for those receiving e-mail solicitations, the bill requires online marketers to identify themselves as such, and prohibits the use of false or misleading sender addresses and subject lines. Pornographic messages would also have to be identified as such. The legislation would supercede 35 state anti-spam laws, some of which are more stringent. (For the latest on the legislation, visit our Web site at www.ljnonline.com. Also see our sister publication, Internet Law & Strategy at www.ljnonline.com/alm?net.)

European Union regulators also recently adopted strict rules on e-mail. European Commission Council Directive 2002/58/EC of July 12, 2002, stipulates that use of automatic calling systems, fax machines or electronic mail used for direct marketing “may only be allowed in respect of subscribers who have given their prior consent.” (See http://europa.eu.int/documents/index_en.htm.)

McTeague's Initiative

Bill C-460, which had its first reading in the House of Commons on Oct. 22, would amend the Criminal Code by creating a Part VI.I, a section dealing with unsolicited electronic mail. The bill ' An Act to Amend the Criminal Code (unsolicited electronic mail), 2nd Sess., 37th Parl., 2003 ' is available online at www.parl.gc.ca.

To become law in Canada, a bill must pass three readings in the House of Commons and the Senate.

Two new categories of offense have been proposed in Bill C-460.

The first, which involves “knowingly” sending or transmitting an unsolicited e-mail message to a recipient, would subject a first-time offender to up to 2 years in prison, a fine of CDN$250,000, or both. Anyone guilty of second or subsequent offenses would be liable to up to 5 years in prison, a CDN$500,000 fine, or both.

The second proposed offense in Bill C-460 involves selling, offering for sale, bartering or exporting any person's e-mail address without his or her consent. First-time offenders would be liable to imprisonment for up to 2 years, a CDN$250,000 fine, or both, while those guilty of second or subsequent offenses would be liable to up to 5 years in prison, a fine of CDN$500,000, or both.

Bill C-460 does, however, provide accused individuals with a defense; namely, they will not be liable if they can establish that they exercised “due diligence” to prevent the commission of the purported offense. Bill C-460 also states that no proceedings relating to these offenses can be instituted without the consent of the Attorney General of Canada. This type of provision is occasionally used in Canadian criminal law to add an extra approval step prior to prosecuting alleged offenders so as to prevent frivolous prosecutions of individuals who may be in technical violation of a law.

Oliver's Proposal

In a separate legislative initiative, Bill S-23, known formally as An Act to prevent unsolicited messages on the Internet, had its first reading on Sept. 17, but the debate on its second reading was postponed on Sept. 24. The bill is also available online at www.parl.gc.ca.

Bill S-23 has essentially three components:

• It would allow Industry Canada to establish an Internet Consumer Protection Council (the Council), which would be responsible for establishing standards and procedures to reduce spam, and all ISPs would be required to be members of the Council.
• The Ministry of Industry will be required to establish a national no-spam list. This will allow any person to provide notice that he or she doesn't want to receive spam. The no-spam list will also create separate categories in which parents could register their children's e-mail addresses.
• It would create various levels of criminal offenses for sending spam to people on the no-spam list. The penalties proposed are considerably less stringent than those under Bill C-460. They range from a CDN$500 fine for sending commercial spam to people registered on the no-spam list to a fine of CDN$5000, and up to 1 year in prison, if the spam contains pornographic material, and was aimed at people on the children's section of the no-spam list.

Responding to Little Public Taste For Spam

There's no question that Bills C-460 and S-23 are Canadian legislative attempts to respond to the negative impact that ever-increasing amounts of spam are having on Internet use.

In her recent report for the Pew Internet and American Life Project, Spam: How it is Hurting Email and Degrading Life on the Internet, Deborah Fallows noted that a quarter of the e-mail users she surveyed reported that the increasing volume of spam has reduced their overall use of e-mail, with 60% of her survey group saying spam has reduced e-mail use “in a big way.” (Editor's note: The report is available at www.pewinternet.org/reports/toc.asp?Report=102.)

Also, 52% of e-mail users Fallows surveyed said that spam has made them less trusting of e-mail in general, while 70% said spam has made being online “unpleasant or annoying.” Notably, 80% of the e-mail users Fallows surveyed were “bothered” by deceptive or dishonest content of spam, while 76% of the same group was bothered by offensive or obscene content that some spam contained.

While Fallow's survey group was composed of U.S. e-mail users, there is no reason to believe that Canadian e-mail users feel any more positively toward spam. In fact, a recent joint study undertaken by market-research firm Ipsos-Reid, and Forge Marketing, reports that 67% of Canadians do not want to receive spam under any circumstances. This study, Despite Growth of SPAM, Canadians Continue To Show Interest In Permission-Based Email (June 11, 2003), is available online at www.ipsos-reid.com/search/pdf/media/mr030611%2D1.pdf, p. 4.

It's clear that Bills C-460 and S-23 are positive Canadian legislative steps toward dealing with spam. Regretfully, private members' bills generally do not have a high success rate for surviving the legislative process to becoming law. That being the case, it remains to be seen whether either of the bills discussed in this article will actually be adopted into Canadian law, if they are reintroduced in the next session of Parliament, as spokespeople for McTeague's and Oliver's offices said they would be.

Lisa R. Lifshitz is senior associate at Gowling Lafleur Henderson LLP, Toronto, where she specializes in e-commerce and technology law. Contact her at [email protected]. The author gratefully acknowledges the assistance of Nicola Geary, student-at-law, in the preparation of this article.

Two bills aimed at establishing strict national anti-spam legislation in Canada expired when the last session of Parliament ended in November without them being enacted, but the legislators who introduced the measures vowed to reintroduce the bills in the next session of Parliament, which is expected to begin Jan. 12, 2004.

The bills, as drafted, would subject people who violate the laws to hefty fines, imprisonment, or both.

Canadian Member of Parliament (MP) Dan McTeague, Liberal representative of the Pickering-Ajax-Uxbridge area of Ontario in the House of Commons, recently introduced a private member's bill to the House of Commons that would have created anti-spam provisions in the Canadian Criminal Code. A private member's bill is one introduced by an MP who is not a cabinet minister.

In addition, Senator Donald Oliver, a Progressive Conservative who represents the Province of Nova Scotia, introduced Bill S-23 to the Senate which, if adopted, would create a national No Spam List and provide for criminal sanctions against those who send spam to people on that list.

Efforts To Expand Spam-Fighting Arsenal

Canada has very limited methods of dealing with people who send unwanted e-mail. These methods largely involve:

• Launching a civil action for financial loss, which is generally only available to Internet service providers (ISPs); or
• Trying to invoke the criminal “mischief” provisions contained in the Criminal Code.

The problem is that these options are generally available only in instances in which spam interferes with or obstructs a person's access to data or use of a computer system, and the sender was “reckless” in that he or she understood that this would likely occur. (See Internet and Bulk Unsolicited Electronic Mail (SPAM) [July 1999], available at Industry Canada's Web site, at http://e-com.ic.gc.ca/english/strat/spam.html, last modified Jan. 22, 2003. Industry Canada is a government department involved in setting telecommunications policies in Canada.)

The initiatives McTeague and Oliver introduced are similar to others launched by national and regional governments around the world to crack down on distribution of unwanted, and possibly illegal, e-mail to consumers.

Early this month, the U.S. Congress passed a bill outlawing junk e-mail and providing for jail time and hefty fines for serious violators. The bill also creates a “do not spam” registry. The measure moves on to the White House, where President Bush is expected to sign it before the end of the year. Along with requiring an “opt-out” option for those receiving e-mail solicitations, the bill requires online marketers to identify themselves as such, and prohibits the use of false or misleading sender addresses and subject lines. Pornographic messages would also have to be identified as such. The legislation would supercede 35 state anti-spam laws, some of which are more stringent. (For the latest on the legislation, visit our Web site at www.ljnonline.com. Also see our sister publication, Internet Law & Strategy at www.ljnonline.com/alm?net.)

European Union regulators also recently adopted strict rules on e-mail. European Commission Council Directive 2002/58/EC of July 12, 2002, stipulates that use of automatic calling systems, fax machines or electronic mail used for direct marketing “may only be allowed in respect of subscribers who have given their prior consent.” (See http://europa.eu.int/documents/index_en.htm.)

McTeague's Initiative

Bill C-460, which had its first reading in the House of Commons on Oct. 22, would amend the Criminal Code by creating a Part VI.I, a section dealing with unsolicited electronic mail. The bill ' An Act to Amend the Criminal Code (unsolicited electronic mail), 2nd Sess., 37th Parl., 2003 ' is available online at www.parl.gc.ca.

To become law in Canada, a bill must pass three readings in the House of Commons and the Senate.

Two new categories of offense have been proposed in Bill C-460.

The first, which involves “knowingly” sending or transmitting an unsolicited e-mail message to a recipient, would subject a first-time offender to up to 2 years in prison, a fine of CDN$250,000, or both. Anyone guilty of second or subsequent offenses would be liable to up to 5 years in prison, a CDN$500,000 fine, or both.

The second proposed offense in Bill C-460 involves selling, offering for sale, bartering or exporting any person's e-mail address without his or her consent. First-time offenders would be liable to imprisonment for up to 2 years, a CDN$250,000 fine, or both, while those guilty of second or subsequent offenses would be liable to up to 5 years in prison, a fine of CDN$500,000, or both.

Bill C-460 does, however, provide accused individuals with a defense; namely, they will not be liable if they can establish that they exercised “due diligence” to prevent the commission of the purported offense. Bill C-460 also states that no proceedings relating to these offenses can be instituted without the consent of the Attorney General of Canada. This type of provision is occasionally used in Canadian criminal law to add an extra approval step prior to prosecuting alleged offenders so as to prevent frivolous prosecutions of individuals who may be in technical violation of a law.

Oliver's Proposal

In a separate legislative initiative, Bill S-23, known formally as An Act to prevent unsolicited messages on the Internet, had its first reading on Sept. 17, but the debate on its second reading was postponed on Sept. 24. The bill is also available online at www.parl.gc.ca.

Bill S-23 has essentially three components:

• It would allow Industry Canada to establish an Internet Consumer Protection Council (the Council), which would be responsible for establishing standards and procedures to reduce spam, and all ISPs would be required to be members of the Council.
• The Ministry of Industry will be required to establish a national no-spam list. This will allow any person to provide notice that he or she doesn't want to receive spam. The no-spam list will also create separate categories in which parents could register their children's e-mail addresses.
• It would create various levels of criminal offenses for sending spam to people on the no-spam list. The penalties proposed are considerably less stringent than those under Bill C-460. They range from a CDN$500 fine for sending commercial spam to people registered on the no-spam list to a fine of CDN$5000, and up to 1 year in prison, if the spam contains pornographic material, and was aimed at people on the children's section of the no-spam list.

Responding to Little Public Taste For Spam

There's no question that Bills C-460 and S-23 are Canadian legislative attempts to respond to the negative impact that ever-increasing amounts of spam are having on Internet use.

In her recent report for the Pew Internet and American Life Project, Spam: How it is Hurting Email and Degrading Life on the Internet, Deborah Fallows noted that a quarter of the e-mail users she surveyed reported that the increasing volume of spam has reduced their overall use of e-mail, with 60% of her survey group saying spam has reduced e-mail use “in a big way.” (Editor's note: The report is available at www.pewinternet.org/reports/toc.asp?Report=102.)

Also, 52% of e-mail users Fallows surveyed said that spam has made them less trusting of e-mail in general, while 70% said spam has made being online “unpleasant or annoying.” Notably, 80% of the e-mail users Fallows surveyed were “bothered” by deceptive or dishonest content of spam, while 76% of the same group was bothered by offensive or obscene content that some spam contained.

While Fallow's survey group was composed of U.S. e-mail users, there is no reason to believe that Canadian e-mail users feel any more positively toward spam. In fact, a recent joint study undertaken by market-research firm Ipsos-Reid, and Forge Marketing, reports that 67% of Canadians do not want to receive spam under any circumstances. This study, Despite Growth of SPAM, Canadians Continue To Show Interest In Permission-Based Email (June 11, 2003), is available online at www.ipsos-reid.com/search/pdf/media/mr030611%2D1.pdf, p. 4.

It's clear that Bills C-460 and S-23 are positive Canadian legislative steps toward dealing with spam. Regretfully, private members' bills generally do not have a high success rate for surviving the legislative process to becoming law. That being the case, it remains to be seen whether either of the bills discussed in this article will actually be adopted into Canadian law, if they are reintroduced in the next session of Parliament, as spokespeople for McTeague's and Oliver's offices said they would be.

Lisa R. Lifshitz is senior associate at Gowling Lafleur Henderson LLP, Toronto, where she specializes in e-commerce and technology law. Contact her at [email protected]. The author gratefully acknowledges the assistance of Nicola Geary, student-at-law, in the preparation of this article.