La digestion des nouvelles lois anti-pourriel du Canada
août 26, 2014 Read Time: 8 minutes
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Most Canadians are certainly in favor of reducing spam in their mailboxes, but Canada’s new anti-spam law (CASL) has been put in place by both businesses and consumers. Critics have called the new law « the world’s toughest anti-spam law. » There are concerns that will not be effective in fighting the most insidious sources of spam, which often originates outside of Canada. There are also some concerns that are not necessarily relevant to Canadian businesses, and that the law is likely to be unconstitutional, but there is much more. This post explores these concerns through an international perspective on the fight against spam. When viewed in this context, CASL can be seen in a different light.

For those who do not know much about CASL, it is legislation that helps to promote electronic commerce and protect Canadians. CASL prohibits sending commercial electronic messages (CEM) to electronic addresses in Canada, without consent, and altering transmission data. The CEM’s Provision of CASL came into force on July 1, 2014. As of January 15, 2015, there will be more to be done. 1, 2017. There are steep penalties for CASL violations, including administrative penalties (AMPs) up to $ 1,000, 000 per violation for individuals and up to $ 10,000,000 per violation for businesses. Directors and officers may also be vicariously liable for violations under the Act.

Reducing Spam in Canada through International Collaboration

Critics of CASL often claim that it will be ineffective because of most spam originates outside of Canada. While it is true that a small amount of money is being collected by Canadians in Canada, this claim ignores the fact that spam is a serious and rapidly escalating global issue, which, like the internet, knows no borders. It is harmful to both consumers and organizations that rely on electronic commerce, and the enactment of multilateral agreements, as well as laws like CASL, globally across jurisdictions and an integral part of the solution. The United Nations Working Group on Internet Governance (WGIG), which released a Report in June, 2005 stressed that,« there is a need for global coordination among all stakeholders to develop policies and technical instruments to combat spam. » Similarly, in the 2006 Organization for Economic Co-operation and Development’s (OECD) Task Force on Spam Report (« OECD Report »), it was noted that  » global co-operation is fundamental to promote appropriate domestic frameworks to counter spam in all countries , and to encourage co-operation among governments, private sectors, civil society and other stakeholders. « 

Canada has made efforts to take a leading role in the fight against spam from the outset. This report has been reprinted in the following statement by the Canadian Task Force on Spam’s 2005 report, Stopping Spam: Creating a Stronger, Safer Internet ,Canada has an obligation to exercise international leadership in fighting spam. «  This wording was mirrored in Industry Canada’s Regulatory Impact Analysis Statement (RIAS) on the Electronic Commerce Protection Regulations . » The Task Force also noted that, « The actions that we take in Canada to reduce the amount of spam in the United States of America .

Another significant reason for Canada is the role of the author of the article , « The role of Canada in the role of global spam ». Register of Known Spam Operations is a database of the world’s largest spamming organizations … The list currently identifies seven organizations based in Canada, making the third largest home of spamming organizations in the world, behind only the United States and Russia.  » Viewed in this context, the need for a comprehensive law in Canada seems clear. It’s a shared international responsibility.

One of the ways that countries have worked together to fight spam through the implementation of multilateral agreements. According to the Canadian Task Force Report, Canada has already participated in a variety of multilateral initiatives. These include the London Action Plan on International Spam Enforcement Cooperation, Australia, the United Kingdom, the United States, and the European Commission. Canada has also been involved in the OECD’s Task Force on Anti-Spam Analysis of the Anti-Spam Legislation in the United States, and developing a comprehensive and multi-faceted anti-spam toolkit for countries. developing public policy and legislative frameworks for addressing spam.

Another way that the international community is collaborating to reduce spam is through the harmonization and effective enforcement of anti-spam laws. The International Telecommunication Union (ITU), which is the United Nations’ specialized agency for information and communication technologies, released in 2005 on the Survey of Anti-Spam Legislation Worldwide. did, the laws were varied, usually in relation to their approaches to consent. CERTIFIED OWNERSHIP OF CERTIFICATES OF CEMS.

According to the Survey, the first anti-spam law was enacted in 1997 in the State of Nevada. Significant Developments in Anti-Spam Laws (2003/58 / EC) in 2003, as well as Australia’s Spam Act 2003 , and the United States CAN-SPAM Act in 2004 CASL, which requires businesses to use « opt-in » approach when it comes to commercial electronic messages, the US’s CAN-SPAM Actis based on an « opt-out » model, where implicit consent to receive these messages is assumed, unless recipients take steps to remove their consent. Unfortunately, an effective approach has yet to be found, and the laws have been weakened on the explosive growth of unwanted spam.

So what makes anti-spam effective legislation? An effective way of regulating effective anti-spam legislation is a harmonized global approach that is not internationally recognized. The Canadian Task Force ‘s analysis of the experiences of other countries in the context of an integrated approach to the problem of drug abuse is one of the most important approaches. These measures complement other non-regulatory measures including industry-specific private sector activities, technical solutions, as well as education and awareness initiatives.

Tracking down and identifying spammers can be difficult and costly, requiring considerable resources. Accordingly, the ITU’s Discussion Paper on Countering Spam: How to Craft an Effective Anti-Spam Lawthe importance of minimizing hurdles faced in prosecuting spammers across jurisdictions. It is recommended that regulators focus on the most significant concerns related to spam, including fraud and pornography, and limit negative impacts on legitimate businesses. The OECD Report recommends putting strong enforcement mechanisms in place, including appropriate standards of evidence in place, and allocating sufficient resources to enforcement authorities. It also recommended that the legislation should support international cooperation and cross-jurisdictional information sharing between authorities in the fight against spam.

While CASL meets most of these principles, it seems to fall short of legislative simplicity. Indeed, the new law makes it easy to understand, and it is difficult to understand. This, the law of cross-jurisdictional reach within Canada could arise.

Questions about Constitutionality

Concerns surrounding the constitutionality of CASL involves its breadth and proportionality in relation to its primary objective, as well as federalism. In 2012, Ravi Shukla wrote a comprehensive discussion on the constitutionality of CASL for the Internet and E-Commerce Law in Canada Newsletter , which focused on the issue of federalism. An earlier article from the same year by Justice Bastarache , Justice of the Supreme Court of Canada (SCC), addressed the constitutionality of the Personal Information and Protection of Electronic Documents Act (« PIPEDA ») in light of the Court’s 2011 decision in Reference Re Securities Act. Both of these articles provide insight into what constitutional arguments are likely to be made in the event of a Challenge to CASL.

The federalism issue relates to the constitution of the federal government’s power over general trade and commerce under section 91 of the Constitution Act, 1867 (the « Constitution »), or if it impinges the provinces’ authority over property and civil rights, and matters of a local and private nature under subsection 92 of the Constitution. The CSC set out the requirements of the National Compensation Commission, in its 1989 decision, General Motors of Canada Limited. City National Leasing .First, whether the law is part of a general regulatory scheme; second, whether the scheme will be monitored by the continuing oversight of a regulatory body; third, whether the law is concerned with trade, rather than a particular industry; fourth, whether the law is of a nature that the provinces would be constitutionally incapable of enacting; and finally, whether the failure to include one or more of the provinces in the legislative scheme would jeopardize the successful operation of the scheme in other parts of the country.

Shukla noted that while the federal government took multiple approaches in its position, it had not taken similar steps in support of CASL. For example, PIPEDA provinces are permitted to « opt-out » if they enact « substantially similar » legislation, such as British Columbia’s Personal Information Protection Act . Organizations that are subject to these provincial privacy laws are exempt from PIPEDA. Despite this provision, the government of Quebec initiated a formal challenge to the constitutionality of PIPEDA in 2003, but the case was held since 2006 when Quebec’s privacy legislation puts the test for substantial similarity to PIPEDA.

According to Justice Bastarache, concerns over the constitutionality of PIPEDA have been raised when the Canadian Securities Act is not supported under subsection 91 (2) of the Constitution Re . The federal government HAD Sought year advisory opinion from the Court as to whether it HAD legislative power to create a national regulatory scheme for securities under the Proposed Securities Act . The Supreme Court was unanimous in finding that it did not. In its decision, the Supreme Court provided some clarification to the government’s general trade and commerce power. It reaffirmed the test set out in General Motorsfinding that the power must give meaningful scope while preserving provincial autonomy.

The Court found that the proposed Act was overreaching, and viewed as a whole, did not fall within the federal government’s general trade and commerce power. While the economic importance of the securities and some aspects of the Act went beyond a specific industry were national in scope, the day to day regulation of the securities market was not a national concern. The effects of the Act would be to duplicate and displace the existing provincial securities regime; and the objectives of national harmonization, presenting a unified face internationally, and reducing inefficiencies were insufficient to justify federal regulation. Importantly, the Court noted that its opinion did not « address the question of what constitutes the optimal model for regulating the securities market », but instead reflected the constitutionality of the model proposed under the Act. A cooperative approach that recognized the essentially provincial nature of securities regulation while allowing the federal government to deal with genuinely national concerns might have passed constitutional scrutiny.

Applying the five the tests outlined in General Motors to CASL, it remains to be seen whether or not Canadian courts will find that the new law is a legitimate exercise of the federal government’s power over trade and commerce. It could be argued that CASL would meet the first test because it incorporates a complex legislative scheme. However, it could also be argued that it is a regulatory scheme not primarily directed at trade and commerce, and is actually more of a privacy related regime like PIPEDA. According to Michael Geist however, in the second part of his recent blog posts in defence of CASL, it was always intended to be more than an anti-spam law. In fact, its stated purpose reflects the promotion of the « efficiency and adaptability of the Canadian economy by regulating conduct that discourages the use of electronic means to carry our commercial activities. »

CASL will likely satisfy the second test because it is monitored by the continuing oversight of three federal regulatory bodies, including Industry Canada, the Canadian Radio-television and Communications Commission (« CRTC ») and the Office of the Privacy Commissioner (« OPC »). It is also likely to satisfy the third test because it is concerned with electronic trade as a whole, rather than a particular industry. However, CASL may or may not be legislation of a nature that the provinces would be incapable of enacting. This is because it is unclear whether or not the provinces could effectively regulate commercial electronic activities related to spam across inter-provincial and international jurisdictions. Unlike, PIPEDA which involved a cooperative regulatory scheme in which the federal government provided a minimum standard for privacy legislation, as well as an opt-out mechanism for provinces that enacted substantially similar legislation, CASL provides a unified national regulatory scheme which does little to protect provincial autonomy. It is possible that CASL would meet the fifth test. A lack of regulatory harmonization could jeopardize the success of CASL’s regulatory schemed and undermine Canada’s ability to meet international obligations in relation to the fight against spam. Although there are some provincial laws related to electronic commerce, including Ontario’s Electronic Commerce Act, 2000, there are no long-standing provincial laws in place related specifically to spam.

Finally, concerns surrounding the constitutionality of CASL also involve its breadth and proportionality. Industry Canada’s FAQs for Businesses and Organizations notes that, « CASL sets a new standard for spam laws around the world. » The negative impact of CASL on legitimate Canadian businesses – and small businesses in particular – in terms of its significant compliance costs, such as the need to put systems in place to track consent, may be disproportionate to its primary objective. This impact might have been reduced by narrowing the impact of the legislation to the most harmful spam offenders, such as those engaged in fraudulent activity. Despite the controversies surrounding CASL, individual Canadians appear to have embraced the new anti-spam legislation, with almost 50,000 complaints received by the CRTC in the first month following its coming into force according to a recent article by Glenn Kauth in Law Times. The sheer volume of complaints makes it more likely that a constitutional challenge will be launched by a business at the receiving end of a significant penalty.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2019 Nelligan O’Brien Payne LLP.