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Spam Laws Worldwide: Canada
Posted by Rebecca Bolin on Tuesday, March 30 @ 16:39:30 EST Governance
Canada’s fight with spam begins quite gentlemanly once upon a time. In 1997, Canadian spammers seemed to be civil, concerned with fair marketing, and willing to self-regulate. At the time, Wired suggested Canada might become a nation sans spam, a proposal that now seems ludicrous for any country with broadband. The then 650 member Canadian Marketing Association called for a code of ethics requiring opt-in and consumer control of personal data, certainly revolutionary policy in 1997. CMA suggested it proposed these measures to meet the desires of their customers and to avoid restrictive legislation. The former of these rationales seems to be long gone from spam debate, but maybe the CMA calculated the latter correctly. The road to spam legislation in Canada has been difficult, and there is far to go yet.

Canada has clearly become a nation avec spam. Spam problems have only grown since the Toronto area Chinese spam gangs set up shop in 1998. Canada has escalated to a #7 spamming rank. Some claim Canadian ISPs are more forgiving than American ISPs, looking the other way and even condoning spamming for large contracts. Even if these accusations are true, it is important to remember that the US has consistently outspammed Canada, holding the #1 spam ranking. That said, Canada is certainly producing plenty of its own spam.

Increasing spam caused increased demand for spam laws. In 2002, even the Canadian Marketing Association, seeming to give up on its own self-regulation, called for new policy dealing with spam. Estimates claimed Canada was sending five billion junk e-mails a year and one million Canadian e-mail address could be bought for a few hundred dollars. Also in 2002, Professor Geist of Ottowa Law School wrote a similar analysis, arguing Canadian privacy laws were inadequate to deal with the growing spam problem.

The legal framework has not changed since. The Privacy Commissioner of Canada confirmed some of these fears in 2002, finding many communications organizations failed to acquire meaningful consent before selling private information, a violation of Bill C-6, the Personal Information Protection and Electronic Documents Act of 2000. The Act protects e-mail addresses as private information. Now that all phases are active, it regulates collection and use of this information by government agencies and private industry, but Bill C-6 seems to have little effect on spam production or even the privacy protections it upholds, with the possible exception of government handling of private information. The Act is administratively enforced, possibly followed by a civil trial and fine. Many criticize these efforts as too weak.

Canada’s 2003 discussion paper about spam policy notes many recent changes in the spam landscape. It cites ISP policies, filtering mechanisms, and extrajurisdictional laws, but still claims spam is problematic. The paper reminds Canada that spam is not illegal and is regulated like paper mailing as opposed to telemarketing and television ads. It suggests particularly malicious spam might be stopped under existing law. Spam which compromised critical computer systems criminal could warrant a criminal penalty of ten years in jail. The Royal Canadian Mounted Police with the Phonebusters National Call Centre have investigated some fraudulent spam operations with help from ISPs.

The discussion paper presents a bleak picture for applying existing law to anything but the most extreme cases, even expressing the legal privacy regulations in tentative language. Canada’s stand on privacy and spam has been weak. In 2002, even the fraudulent e-mails characterized as criminal in the discussion paper seemed to only deserve warnings. Ironically, efforts to stop Canadian spammers are accelerating, but they are from the more notorious southern spammer, the United States, now wielding the CAN-SPAM act, so new it was not even in the 2003 discussion paper. Yahoo! has alleged that a Canadian and his two twenty-something sons have sent hundreds of millions of unsolicited messages, including weight loss and prescription drug pitches. CAN-SPAM would allow ISPs to sue Canadian spammers for civil damages and presumably have the judgments executed there.

If CAN-SPAM initiatives as applied to Canada go as anticipated, American law might relieve many of the fears stemming from Canada’s weak spam laws. With American interference using CAN-SPAM, overall spam volume would decrease and Canada could not become a safe haven for spammers (assuming Canadian compliance with judgment executions). This scenario, though probably not so troubling for Americans, should concern Canadians who want to establish their own privacy and spamming standards. There is probably no way to shield Canadian spammers from CAN-SPAM, but Canada could implement its own spam regulations to collect damages for Canadian ISPs (or government agencies or users or businesses) and thus compete with the United States to punish violators and shift spamming costs to Canadian spammees. More importantly, robustly enforced Canadian privacy regulations could protect the rights of Canadian users against Canadian or American spammers.

For other countries, see the Spam Laws Worldwide Index.

 
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