Industry Canada preparing for consultation on new C-28 anti-spam regulations

OTTAWA—Industry Canada hopes to launch a consultation on regulations to support the Conservative government’s anti-spam legislation within a couple of months, Janet DiFrancesco, director general of the department’s electronic commerce branch, told the Senate transport and communications committee Tuesday. “We hope to have the legislation come into force within six to eight months of royal assent. The three enforcement agencies are working very hard to ramp up and be ready for the legislation as soon as it’s in force,” DiFrancesco said. Regulations to support the government’s anti-spam legislation, Bill C-28, will outline specifics on consent for receiving spam; classes of spam and how they are distributed; details on the collection of personal information and the function of malware; and definitions for terms in the legislation. The regulations will be published in the Canada Gazette for a 60-day consultation period, DiFrancesco said. The transport and communications committee met Tuesday morning for its first—and only—meeting on the bill. The committee quickly heard from witnesses from Industry Canada and the Information Technology Association of Canada (ITAC) before voting to refer the bill back to the Senate without amendment. The bill passed third reading in the Senate on Tuesday afternoon and is now set to receive royal assent from new Governor General David Johnston along with a group of bills in a ceremony Wednesday at 4:15 p.m. In the last Parliament, C-28’s previous incarnation, Bill C-27, was studied, amended, and passed by the House to reach the Senate, where it was referred to the transport and communications committee. But the committee did not hold meetings on the bill before it died on the order paper when the Conservative government prorogued Parliament in late 2009. Bill C-28 would prohibit the sending of commercial emails without the consent of recipients, and gives new enforcement powers to the CRTC and the Competition Bureau. DiFrancesco said violations of the law can lead to fines of up to $1 million for individuals and up to $10 million for businesses. The Competition Bureau can also enforce the law under the Competition Act, which allows for fines of up to $750,000 for individuals and up to $1 million for repeat violations, she said. It also permits fines of up to $10 million for businesses and up to $15 million for repeat violations. The legislation also gives the Office of the Privacy Commissioner the power to take measures against the collection of personal information. The Competition Bureau will investigate deceptive marketing practices, and the CRTC telecom issues. DiFrancesco said the government has committed $43 million over four years to administering the legislation, the bulk of which will go to the CRTC, the Competition Bureau and the privacy commissioner. The bill will also permit Industry Canada to create a Spam Reporting Centre to provide information to the enforcement agencies, support their investigations and facilitate public awareness. The reporting centre will use advanced technologies to collect data and conduct research and analysis about spam trends, DiFrancesco said. The centre will be housed at arm’s length from the government, at an institution such as a university, so that it does not fall under the constraints of the Privacy Act, which limits government agencies from data collection. “The Spam Reporting Centre would be housed somewhat at arm’s length from government, not in Industry Canada, but with an external body that would work very closely with the Internet service providers and receive complaints from Canadian citizens about where spam is happening and where are the most malicious threats,” DiFrancesco said. She added that the department is working with its Office of Consumer Affairs to establish a website for public awareness about the legislation and how Canadians can protect themselves online. DiFrancesco said the department estimates the Competition Bureau and the CRTC will each hire as many as 20 investigators each to support the legislation and that the Spam Reporting Centre will hire about 10 to 12 staff. The CRTC’s role in enforcing the legislation is in line with models in other jurisdictions, she said. André Leduc, policy adviser for e-commerce policy at the department, said Industry Canada discussed the legislation with Australian officials to learn about Australia’s anti-spam model and avoid potential pitfalls. “The Australian legislation saw a marked decrease in spam originating out of Australia literally the day after that legislation came into force. They were among the top 10 spamming nations. They dropped to 17, and now they’re out of the top 20,” he said. Leduc said Canada ranks seventh in the world among spam-originating countries, according to The Spamhaus Project, a spam tracking service. During the committee meeting, Liberal Senator Terry Mercer expressed concern that the legislation potentially creates 52 new jobs and gives new powers to the CRTC. “We’ve had some difficulty with the CRTC in the past,” he said. “The CRTC has a reputation of taking one little sliver, one little mistake we make in the legislation, and turns it into a nightmare over there. They become a policymaker as opposed to a regulator or administrator of legislation.” DiFrancesco pointed out that a statutory, three-year review is built into the legislation that will permit parliamentarians to examine any potential unintended consequences and advances in technology. She added Industry Canada will play an oversight role to ensure the enforcement agencies are coordinating their work. Bernard Courtois, president and CEO of ITAC, told the committee he supports giving new powers to the CRTC. He acknowledged that a lot of spam originates outside Canada’s jurisdiction, such as Eastern Europe or Asia, but said there are significant spammers in Canada. The problem requires international cooperation, and Canada needs to update its regulatory framework to play a role, he said. “It’s a problem that requires advanced countries like ours to have their own spam legislation, to catch those people that are on our territory.” C-28 differs from its predecessor, C-27, in two ways. The new bill includes a provision to ensure that, in the event of a conflict between C-28 and the Personal Information Protection and Electronic Documents Act (PIPEDA), “Bill C-28 prevails,” DiFrancesco said. The government also removed a line that said companies could not access personal information online “without authorization.” Industry had expressed concerns that the wording could affect the ability of companies to conduct data mining from publicly available websites. That wording was changed to say that companies cannot access personal information online if the activity is “in contravention of an Act of Parliament.” sdoyle@thewirereport.ca

Industry Canada preparing for consultation on new C-28 anti-spam regulations

News | December 14, 2010

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