Sookman justice canada_keynote

McCarthy Tétrault Advance™
Building Capabilities for Growth

Justice Canada Intellectual Property and
Information Technology Law Training Day
Keynote Address:
Legislative and Judicial Approaches to
Internet Regulation: Case Study,
Canada’s Anti-SPAM Law (CASL)
Barry B. Sookman
McCarthy Tétrault LLP
bsookman@mccarthy.ca
416-601-7949
McCarthy Tétrault LLP / mccarthy.ca / 12225322

February 26, 2013

Overview of Internet Regulation Principles
¬ Recognize power of Internet as means of
dissemination of information
¬ Promote confidence in use of electronic means of
communication
¬ Focus on real harms and avoid inadvertent
consequences
¬ Technologically neutrality
¬ Balance
¬ Respect for international comity
¬ Respect for freedom of expression and Charter values


SOCAN v. Canadian Assn. of Internet Providers,
2004 SCC 45
¬ “The capacity of the Internet to disseminate
“works of the arts and intellect” is one of the great
innovations of the information age. Its use should
be facilitated rather than discouraged, but this
should not be done unfairly at the expense of
those who created the works of arts and intellect
in the first place.’


2004 SCC 45
¬ “Parliament has decided that there is a public interest in encouraging
intermediaries who make telecommunications possible to expand and
improve their operations without the threat of copyright infringement. To
impose copyright liability on intermediaries would obviously chill that
expansion and development, as the history of caching demonstrates.”
¬ “Section 2.4(1)(b) reflects Parliament’s priority that this entrepreneurial
push is to continue despite any incidental effects on copyright owners.”
¬ “Nevertheless, by enacting s.2.4(1)(b) of the Copyright Act…Parliament did
not want copyright disputes between creators and users to be visited on
the heads of the Internet intermediaries, whose continued expansion and
development is considered vital to national economic growth.”


2004 SCC 45
¬ “The “real and substantial connection” test was adopted and
developed by this Court… From the outset, the real and substantial
connection test has been viewed as an appropriate way to “prevent
overreaching . . . and [to restrict] the exercise of jurisdiction over
extraterritorial and transnational transactions”… The test reflects the
underlying reality of “the territorial limits of law under the international
legal order” and respect for the legitimate actions of other states
inherent in the principle of international comity… A real and
substantial connection to Canada is sufficient to support the
application of our Copyright Act to international Internet transmissions
in a way that will accord with international comity and be consistent
with the objectives of order and fairness.”


Club Resorts Ltd. v. Van Breda, 2012 SCC 17
¬ “Carrying on business in the jurisdiction may also be considered
an appropriate connecting factor. But considering it to be one
may raise more difficult issues. Resolving those issues may
require some caution in order to avoid creating what would
amount to forms of universal jurisdiction in respect of tort claims
arising out of certain categories of business or commercial
activity. Active advertising in the jurisdiction or, for example, the
fact that a Web site can be accessed from the jurisdiction would
not suffice to establish that the defendant is carrying on business
there. The notion of carrying on business requires some form of
actual, not only virtual, presence in the jurisdiction, such as
maintaining an office there or regularly visiting the territory of the
particular jurisdiction.”


Crookes v. Newton, 2011 SCC 47
¬ “The Internet’s capacity to disseminate information has
been described by this Court as “one of the great
innovations of the information age” whose “use should be
facilitated rather than discouraged” (SOCAN, at para.
40, per Binnie J.). Hyperlinks, in particular, are an
indispensable part of its operation. As Matthew Collins
explains, at para. 5.42:
¬ Hyperlinks are the synapses connecting different parts
of the world wide web. Without hyperlinks, the web
would be like a library without a catalogue: full of
information, but with no sure means of finding it.”


¬ “Interpreting the publication rule to exclude mere references not only
accords with a more sophisticated appreciation of Charter values, but also
with the dramatic transformation in the technology of communications….
¬ The Internet cannot, in short, provide access to information without
hyperlinks. Limiting their usefulness by subjecting them to the traditional
publication rule would have the effect of seriously restricting the flow of
information and, as a result, freedom of expression. The potential “chill” in
how the Internet functions could be devastating, since primary article
authors would unlikely want to risk liability for linking to another article over
whose changeable content they have no control. Given the core
significance of the role of hyperlinking to the Internet, we risk impairing its
whole functioning. Strict application of the publication rule in these
circumstances would be like trying to fit a square archaic peg into the
hexagonal hole of modernity.”


¬ “Making reference to the existence and/or location of
content by hyperlink or otherwise, without more, is not
publication of that content. Only when a hyperlinker
presents content from the hyperlinked material in a way
that actually repeats the defamatory content, should
that content be considered to be “published” by the
hyperlinker. Such an approach promotes expression
and respects the realities of the Internet, while creating
little or no limitations to a plaintiff’s ability to vindicate his
or her reputation.”


SOCAN v. Bell Canada, 2012 SCC 36
¬ “SOCAN argued that the purpose of the previews in this case was purely
commercial. This is an approach that looks at the purpose of the previews
from the perspective not of the consumer, but of the service providers. I
agree instead with the Board and the Federal Court of Appeal that the
predominant perspective in this case is that of the ultimate users of the
previews, and their purpose in using previews was to help them research
and identify musical works for online purchase. While the service
providers sell musical downloads, the purpose of providing previews is
primarily to facilitate the research purposes of the consumers.
¬ All of this confirms the Board’s conclusion that previews satisfy the
requirements of fair dealing and that the online service providers do not
infringe copyright. In so concluding, the Board properly balanced the
purposes of the Act by encouraging the creation and dissemination of
works while at the same time ensuring that creators are fairly rewarded.”


SOCAN v. Bell Canada, 2012 SCC 36
¬ “Further, given the ease and magnitude with which digital works are
disseminated over the Internet, focusing on the “aggregate” amount of the
dealing in cases involving digital works could well lead to disproportionate
findings of unfairness when compared with non-digital works. If,
as SOCAN urges, large-scale organized dealings are inherently unfair,
most of what online service providers do with musical works would be
treated as copyright infringement. This, it seems to me, potentially
undermines the goal of technological neutrality, which seeks to have
the Copyright Act applied in a way that operates consistently, regardless
of the form of media involved, or its technological sophistication:
Robertson v. Thomson Corp., 2006 SCC 43 (CanLII)…”


Entertainment Software Association v. SOCAN, 2012 SCC 34
¬ “In our view, the Board’s conclusion that a separate, “communication”
tariff applied to downloads of musical works violates the principle of
technological neutrality, which requires that the Copyright Act apply
equally between traditional and more technologically advanced forms of
the same media…
¬ SOCAN has never been able to charge royalties for copies of video
games stored on cartridges or discs, and bought in a store or shipped by
mail. Yet it argues that identical copies of the games sold and delivered
over the Internet are subject to both a fee for reproducing the work and a
fee for communicating the work. The principle of technological neutrality
requires that, absent evidence of Parliamentary intent to the contrary, we
interpret the Copyright Act in a way that avoids imposing an additional
layer of protections and fees based solely on the method of delivery of the
work to the end user. To do otherwise would effectively impose a
gratuitous cost for the use of more efficient, Internet-based
technologies.”


Rogers Communications Inc. v. SOCAN 2012 SCC 35
¬ “In addition, this Court has long recognized in the context of the
reproduction right that, where possible, the Act should be
interpreted to extend to technologies that were not or could not
have been contemplated at the time of its drafting…That the Act
was to apply to new technologies was recently reaffirmed…
¬ Although the words “in any material form whatever” qualify the right
to “produce or reproduce the work” in s. 3(1), the same principle
should guide the application of the neutral wording of the right to
“communicate … to the public by telecommunication”. The broad
definition of “telecommunication” was adopted precisely to provide
for a communication right “not dependent on the form of
technology”.”


Personal Information Protection and Electronic Documents A
(PIPEDA)

¬ “An Act to support and promote electronic
commerce by protecting personal information
that is collected, used or disclosed in certain
circumstances, by providing for the use of
electronic means to communicate or record
information or transactions and by amending
the Canada Evidence Act, the Statutory
Instruments Act and the Statute Revision Act.”


Personal Information Protection and Electronic Documents Act
(PIPEDA)

¬ “The purpose of this Part is to establish, in an era in
which technology increasingly facilitates the circulation
and exchange of information, rules to govern the
collection, use and disclosure of personal information in
a manner that recognizes the right of privacy of
individuals with respect to their personal information and
the need of organizations to collect, use or disclose
personal information for purposes that a reasonable
person would consider appropriate in the
circumstances.”


United Food and Commercial Workers, Local 401 v Alberta (A
, 2012 ABCA 130
¬ “The Personal Information Protection Act expressly states its
overall purposes. The most important provision is s. 3:
The purpose of this Act is to govern the collection, use and
disclosure of personal information by organizations in a
manner that recognizes both the right of an individual to have
his or her personal information protected and the need of
organizations to collect, use or disclose personal information
for purposes that are reasonable.
¬ The statute recognizes two competing values: the right to protect
information, and the need to use it. The Act does not expressly
refer to how it interacts with the right to free expression.”


, 2012 ABCA 130
¬ “Determining if the restriction on free expression is
justified starts by analyzing whether the objectives of the
statute are related to a pressing and substantial goal. If
so, the analysis turns to the proportionality of the
legislation. If the limiting measures are rationally
connected to the objective, one must then determine
whether the infringement is as limited as possible.
Finally, the analysis examines whether the salutary
effects of the Act outweigh its deleterious effects: R. v
Oakes,1986 CanLII 46 (SCC), [1986] 1 SCR 103.”


, 2012 ABCA 130
¬ “Prior to the enactment of modern privacy legislation, there was little
common law protection for privacy rights. The advent of new technology
called for legislative intervention. New technology not only permitted the
collection of vast amounts of personal data, it also enabled a much wider
analysis of that data to extract information. Most importantly, new
technology like the Internet enables vastly wider dissemination of
information. In the interest of protecting reasonable expectations of privacy,
expectations that one can control one’s own image and personal
information, and in order to limit the misuse (including fraudulent use) of
personal information, many legislatures enacted privacy legislation. This
legislation can be accepted as addressing a pressing and substantial
problem.
¬ The pressing and substantial problem is the potential misuse of personal
information. Limiting the ability of organizations to collect, store, and use
that information has a rational connection to the objective.”

, 2012 ABCA 130
¬

“There is, however, a problem relating to proportionality. The constitutional problems with
the Act arise because of its breadth. It does not appear to have been drafted in a manner
that is adequately sensitive to protected Charter rights. There are a number of aspects to
the over-breadth of the Act:
¬ It covers all personal information of any kind, and provides no functional definition of
that term…The Commissioner has not to date narrowed the definition in his
interpretation of the Act in order to make it compliant with Charter values.
¬ The Act contains no general exception for information that is personal, but not at all
private. For example, the comparative statutes in some provinces exempt activity
that occurs in some public places.
¬ The definition of “publicly available information” is artificially narrow.
¬ There is no general exemption for information collected and used for free
expression.
¬ There is no exemption allowing organizations to reasonably use personal
information that is reasonably required in the legitimate operation of their
businesses.”


, 2012 ABCA 130
¬

“This appeal clearly demonstrates the impact that the Act can have on
protected rights. The legitimate right of the union to express itself and
communicate about the strike and its economic objectives have been directly
impacted by the Adjudicator’s order. The appellant has not demonstrated why
this heavy handed approach to privacy is necessary, given the impact it has on
expressive rights.

¬

It is also not apparent that the salutary effects of the Act outweigh its
deleterious effects. While the protection of personal information is important, it
is no more important than collective bargaining and the rights of workers to
organize. It is also no more important than the right of the union to
communicate its message to the public. On the other hand, the privacy interest
being protected here is minimal. The persons who were videotaped were in a
public place, crossing an obvious picket line, in the face of warning signs that
images were being collected. The privacy expectations were very low.
Protecting that low expectation of privacy does not warrant the significant
stifling of expression that resulted from the Adjudicator’s order.”


The Anti-SPAM Prohibition:
Consent, Form and Content
S.6(1) It is prohibited to send or cause or permit to be sent to an
electronic address a commercial electronic message unless:
a) the person to whom the message is sent has consented to
receiving it, whether the consent is express or implied; and
b) the message complies with subsection (2).
(2) The electronic messages must be in a form that conforms to the
prescribed requirements and must:
a) set out prescribed information that identifies the person who
sent the message;
b) set out information enabling the person to whom the message
is sent to readily contact the sender; and
c) set out the prescribed unsubscribe mechanism.
McCarthy Tétrault LLP / mccarthy.ca 11764519

21

What Messaging Systems are Covered
¬ “electronic message” means a message sent by any means of
telecommunication, including a text, sound, voice or image
message. (s1(1)) (But, excludes interactive two-way voice
communication between individuals, fax messages to a telephone
account, voice recordings to a telephone account. (s.6(8))
¬ “electronic address” means an address used in connection with
the transmission of an electronic message to (a) an electronic mail
account; (b) an instant messaging account; (c) a telephone account;
or (d) any similar account. (s.1(1))
¬ Covers opt-in closed messaging systems e.g., instant messaging,
online portals, SMS, electronic alerts, and other messaging systems
and methods.


22

What is a CEM?
A “commercial electronic message” is an electronic message that,
having regard to the content of the message, the hyperlinks in the
message to content on a website or other database, or the contact
information contained in the message, it would be reasonable to
conclude has as its purpose, or one of its purposes, to encourage
participation in a commercial activity, including an electronic message
that (a) offers to purchase, sell, barter or lease a product, goods, a
service, land or an interest or right in land; (b) offers to provide a
business, investment or gaming opportunity; (c) advertises or
promotes anything referred to in paragraph (a) or (b); or (d) promotes
a person, including the public image of a person, as being a person
who does anything referred to in any of paragraphs (a) to (c), or who
intends to do so. (s.1(2))


23

What is a CEM? –cont’d

A “commercial activity” is any particular transaction, act or
conduct or any regular course of conduct that is of a
commercial character whether or not the person who carries it
out does so in the expectation of profit, other than any
transaction, act or conduct that is carried out for the purposes
of law enforcement, public safety, the protection of Canada,
the conduct of international affairs of the defence of Canada”
(s.1(1)).


24

General Exceptions
1. Where sender and recipient have a personal or family relationship (s.6(5)(a)) (Draft
IC Regs -2)
2. An inquiry or application related to a person engaged in a commercial activity. (s.6(5)
(b))
3. Messages sent in response to requests, inquiries or complaints (Draft IC Regs -3(b))
4. Messages sent due to a legal obligation or to enforce a legal right including a
pending legal right (Draft IC Regs - 3(d))
5. Messages sent within an organization that concern the business affairs of that
organization (Draft IC Regs - 3(a)(i)).
6. Messages sent between organizations with a business relationship that concern the
recipient’s business, role, functions or duties (Draft IC Regs - 3(a)(ii)).
7. Messages sent by a foreign organization to a foreign recipient that is accessed while
roaming in Canada (Draft IC Regs – 3(c))


25

Consent: Express
Express (subject to unsubscribe):
i. obtained orally or in writing for a particular purpose
ii. clearly and simply set out prescribed form and content
information including the name of the requester, the
purpose of the request, the mailing address, email or
website of the requester; and
iii. be sought separately for each act described in the Act
(sending of messages, alteration of transmission data,
installation of a computer programs)


26

Getting Express Consents to Send CEMs
s.6 of the Act and s. 4 of the CRTC Regs
Prescribed Requirements:
(a) the purpose or purposes for which the consent is being sought;
(b) the name by which the person seeking consent carries on business, if
different from their name, if not, the name of the person seeking consent;
(c) if the consent is sought on behalf of another person, (i) the name by which
the person on whose behalf consent is sought carries on business, if different
from their name, if not, the name of the person on whose behalf consent is
sought; and (ii) a statement indicating which person is seeking consent and for
which person consent is sought;
(d) the mailing address, and either a telephone number providing access to an
agent or a voice messaging system, an email address or a web address of the
person seeking consent or, if different, the person on whose behalf consent is
sought; and
(e) a statement indicating that the person whose consent is sought can
withdraw their consent.

27

Consent: Implied
Implied (expires after an initial period – often 2 years):
Based on a closed list of categories:
i. where there is an ‘existing business relationship’ or an ‘existing
non-business relationship.’
ii. where the recipient has “conspicuously published” the
electronic address without a statement that the person does not
wish to receive unsolicited CEMs AND the message is relevant
to the person’s business, role, functions or duties in a business
or official capacity;
iii. where the recipient has disclosed, to the person who sends the
message, the electronic address without indicating a wish not
to receive unsolicited CEMs, AND the message is relevant to
the person’s business, role, functions or duties in a business or
official capacity;

28

Implied Consent to Send CEMs
“Existing business relationship” is a business relationship arising from
(s.10(10)):
a) the purchase or lease of a product, goods, a service, land or an
interest or right in land, within the 2-year period immediately before the
day on which the message was sent;
b) the bartering of anything mentioned in paragraph (a)...
c) a written contract entered into between the recipient and the sender in
respect of a matter not referred to in any of paragraphs (a) to (c), if the
contract is currently in existence or expired within the period referred to
in paragraph (a); or
d) an inquiry or application, within the 6-month period immediately before
the day on which the message was sent, made by the recipient to the
sender, in respect of anything mentioned in any of paragraphs (a) to
(c).


29

Implied Consents to Send CEMs
“Existing non-business relationship” is a non-business relationship arising
from (s.10(13)):
a) a donation or gift made by recipient to the sender within the 2-year
period immediately before the day on which the message was sent,
where the sender is a registered charity, a political party or
organization, or a person who is a candidate for publicly elected office;
b) volunteer work performed by the recipient for the sender, or
attendance at a meeting organized by the sender, within the 2-year
period immediately before the day on which the message was sent,
where the sender is a registered charity, a political party or
organization, or a person who is a candidate for publicly elected office;
or
c) membership, as defined in the regulations, by the recipient, in the
sender, within the 2-year period immediately before the day on which
the message was sent, where the sender is a club, association or
voluntary organization, as defined in the regulations.

30

Implied Consent to Send CEMs
(Draft Industry Canada reg. 7.(1))

Membership is the status of having been accepted as a member
of a club, association or voluntary organization in accordance with
the membership requirements of the club, association or
organization.
A club, association or voluntary organization is a non-profit
organization that is organized and operated exclusively for social
welfare, civic improvement, pleasure or recreation or for any
purpose other than profit, if no part of its income is payable to, or
otherwise available for the personal benefit of any proprietor,
member or shareholder of that organization unless the proprietor,
member or shareholder is an organization the primary purpose of
which is the promotion of amateur athletics in Canada.


31

What must be in each CEM
¬ CRTC reg: 2.(1) For the purposes of subsection 6(2) of the Act, the
following information must be set out in any commercial electronic
message:
¬ (a) the name by which the person sending the message carries on
business, if different from their name, if not, the name of the person;
¬ (b) if the message is sent on behalf of another person, the name by
which the person on whose behalf the message is sent carries on
business, if different from their name, if not, the name of the person on
whose behalf the message is sent;
¬ (c) if the message is sent on behalf of another person, a statement
indicating which person is sending the message and which person on
whose behalf the message is sent; and
¬ (d) the mailing address, and either a telephone number providing access
to an agent or a voice messaging system, an email address or a web
address of the person sending the message or, if different, the person on
whose behalf the message is sent.

Unsubscribe Requirements
The Unsubscribe Mechanism must:
¬ be set out clearly and prominently and be able to be readily
performed;
¬ enable the recipient to indicate, at no cost to them, the wish to no
longer receive any commercial electronic messages, or any
specified class of such messages, from the sender, using (i) the
same electronic means by which the message was sent, or (ii) if
using those means is not practicable, any other electronic means
that will enable the person to indicate the wish; and
¬ specify an electronic address, or link to a page on the World Wide
Web that can be accessed through a web browser, to which the
indication may be sent (the address or Web page must be valid for
60 days). (s.11(1) & (2))


33

Use of web to comply with CEM and
unsubscribe formalities
¬ CRTC reg: 2.(2)
¬ If it is not practicable to include the information referred to in subsection
(1) and the unsubscribe mechanism referred to in paragraph 6(2)(c) of
the Act in a commercial electronic message, that information may be
posted on a page on the World Wide Web that is readily accessible by
the person to whom the message is sent at no cost to them by means of
a link that is clearly and prominently set out in the message.


CASL: promotes or discourages use of
electronic messaging systems?
Coalition of Business and Technology Associations
¬“CASL is drafted to sweep in a wide range of messages. As a
result, there is significant uncertainty about what measures are
necessary to comply. Guidance received to date from the CRTC
suggests that a range of service messages including messages
warning consumers when they will incur roaming or other extra
charges, or bringing warranty issues to their attention, could be
illegal to send if consumers inadvertently unsubscribe from receiving
all CEMs from an organization. CASL will therefore make it more
difficult for organizations to develop services that rely purely on
electronic means of doing business – digital economy businesses –
because it may enable customers to unsubscribe from receiving
service and transactional messages.”


CASL: promotes or discourages use of
electronic messaging systems?
¬“CASL, as it is currently drafted, requires almost a
message by message content review to determine if it is
caught within the scope of the Act which is something
that cannot be done systemically. This runs directly
counter to the stated purpose of the Act (promoting the
efficiency and adaptability of the Canadian economy,
encouraging the use of electronic means to carry out
commercial activities) and also results in unwarranted
and unnecessary liability and risk for organizations.”


CASL: promotes or discourages use of electronic
messaging systems?
Interactive Advertising Bureau of Canada

¬ “One of the critical challenges posed by CASL is the incredibly
broad definition of a CEM. While the Regulatory Impact Analysis
Statement (“RIAS”) contained a statement that companies were
“misinterpreting” the breadth of the definition of CEM, the actual
wording of the definition is so broad that a wide class of electronic
messages may very well fall within the CEM classification. For
instance, the reference in the definition to having regard to
“hyperlinks in a message to content on a website” and the broad
reference to “advertising” could result in the scope of CASL
dangerously extending far beyond the original intent and spirit of
the Act…The failure to limit the scope of CEM in this regard will
undoubtedly have significant adverse economic consequences for
all companies involved in the digital ecosystem.”
Consistent with Crookes v Newton?

CASL: promotes or discourages use of electronic
messaging systems?
The Canadian Chamber of Commerce
¬ “The broad scope of the definition of electronic
messages means any electronic message containing
a hyperlink to a web page designed for commercial
intent would be considered a CEM. Most business
email will contain a link to the company home page
yet it is unreasonable to assume that every message
sent is of a commercial nature.”
Consistent with Crookes v Newton?


CASL –technologically neutral?
CWTA
¬“While the intent of the Act and the Regulations is for a
technology-neutral application of the rules to all forms of
electronic messaging, CWTA remains concerned that the
rules will not fully consider and address the unique
limitations of CEMs that do not resemble an email.
Regulations that do not fully consider the limitations of
SMS messages will cause considerable compliance
challenges and will fully undermine the relevance and
impact of mobile messaging as a marketing platform.”


CASL –technologically neutral?
Information Technology Association Canada (ITAC)
¬“Through compliance-planning activities, ITAC’s members have
become increasingly aware of the breadth, scope and inflexibility of
the CASL rules that govern both the sending of electronic messages
and the installation of computer programs. We believe that these rules
are unnecessarily complex and broad. The application of the
electronic messaging rules to closed and managed messaging
platforms, such as short-codes services and instant messaging
services like Blackberry Messenger, serves as a case in point. These
platforms are self-regulating and provide consumers with strong
protections for managing unwanted messages. Applying CASL’s
prescriptive rules on these platforms creates significant practical
compliance issues and related costs, with no corresponding benefit to
consumers.”

CASL: Extra-territoriality problem?
¬ Philip Palmer (Formerly of Industry Canada)
¬ “[T]he extra territorial reach of CASL has the following unintended
effects:
¬ it imposes compliance costs on companies doing business from
Canada that do not have to be met by their competitors in those
markets;
¬ it exposes Canadian companies to both administrative monetary
penalties and class actions that are not faced by their competitors;
¬ it requires dual compliance with local and Canadian law (with
Canadian law trumping in the event of a conflict); and,
¬ it encourages Canadian companies to move their back office
operations (and well-paying jobs) from Canada to jurisdictions where
CASL will not have application.”


CASL: Extra-territoriality problem?
Philip Palmer (Formerly of Industry Canada)
¬“Clearly the application of CASL to messages that
are compliant with local laws impacts the
competitiveness of Canadian businesses who
operate in foreign jurisdictions. At the same time, the
measure contributes nothing to the protection of
Canadian residents. In effect, the approach taken in
CASL treats foreign jurisdictions paternalistically in
applying Canadian law – even where that jurisdiction
has a domestic anti-spam regime (such as the United
States and the countries making up the European
Union).”

CASL: Extra-territoriality Problem
AccessPrivacy
¬“Given the breadth and nature of CASL requirements (and the
potential penalties for non-compliance and private right of action), we
have received consistent comments from Canadian service providers
that they will no longer be able to provide services to US and other
foreign-based clients (relating to marketing efforts in those
jurisdictions) if CASL were to apply to the sending of such CEMs. USbased companies will not expect CASL to apply to their US-based
marketing efforts, and none will want to comply with all of CASL’s
more onerous requirements in such circumstances. Moreover, given
the private right of action, it would be practically unworkable for
service providers and their US- or foreign-based clients to assume
any potential risk of CASL applying in these circumstances.”
¬

CASL: consistent with Charter values?
¬ Is CASL consistent with Charter values e.g., United Food v Alberta?
¬ It covers all CEMs and computer programs of any kind and provides no
functional definition of that term.
¬ The Act contains no general exception for messages that are not harmful
or desirable. This is unlike legislation in any other country.
¬ The definition of “publicly available information” is artificially narrow.
¬ There is no general exemption for messages sent for free expression.
¬ There is no general exemption allowing organizations to send messages
(or install programs) that is reasonably required in the legitimate operation
of their businesses e.g., the existing business relationship exception is
arbitrary and is not based on any real implied or inferred consent principle,
as in Australia.


Rational connection and efficacy?
¬ “It is well known that most real threats from CEMs
such as those that are false or misleading and from
spam, malware and spyware originate outside of
Canada. These are well out of the reach of the
Commission’s enforcement abilities, and will not be
addressed by treating all Canadians and Canadian
organizations as if they were originators of spam,
malware and spyware, as CASL does.”


Rational connection and efficacy?
¬ “Ultimately, it is not clear that CASL will solve the
problem of nuisance/fraudulent messages or of
nuisance/malicious software, which are generally
initiated outside the jurisdictional reach of the CRTC,
the agency tasked with enforcement. Imposing this
kind of financial burden and economic disruption
without a very high expectation of solving the
problem is counterproductive for all.”


Disproportionate and deleterious impacts?
Ontario Nonprofit Network
1.The regulations as presented do not support or accommodate the organizational
structures and community building work of the thousands of small and mid-size
charitable and nonprofit organizations providing public benefit in communities.
2.Small and mid-size charitable and nonprofit organizations cannot comply with
CASL and its regulations and undertake their day-to-day work. There is a
fundamental conflict that will either impede their work in communities or, as
noncompliant, leave them vulnerable to potentially prohibitive fines and private
actions.
3.The legislation and regulation will place undue financial and administrative
burden on those nonprofit organizations which attempt to comply.
4.The prohibitive costs and risks associated with requiring that charities and
nonprofit organizations manage and maintain express and implied consent records
across their complex databases and ever-changing community connections and
relationships is not justified given their negligible participation in the generation of
spam.

Imagine Canada
¬“Legislation and regulations aimed at controlling spam in Canada
should not be so overly broad in scope that they impede and make
more costly the electronic communications of registered charities,
including universities, for purposes such as fundraising. The Canadian
Radio-television and Telecommunications Commission's Unsolicited
Telecommunications Rules that are intended to control a related
problem — telemarketing — reflect this principle by exempting from
the application of the National Do Not Call List Rules any unsolicited
telecommunications made by or on behalf of a registered charity.”


Imagine Canada
1. The definition of “commercial electronic message” is sufficiently broad that it will
restrict the ability of many charities and public-benefit nonprofits to carry out
activities that further their missions to serve Canadians and communities.
2.The draft regulations, as presented, would place undue financial and
administrative burdens on charities and public-benefit nonprofits.
3.The draft regulations do not reflect or accommodate the ways in which charities
and public benefit nonprofits communicate with each other, with key stakeholders,
or with the general public.
4.The draft regulations are inconsistent with other domestic policies and with the
federal government’s stated objectives regarding philanthropy and the facilitation
of earned income by charities and public-benefit nonprofits.
5.The draft regulations are inconsistent with policy developments internationally.


Canadian Bar Association
¬“This limited definition of a non-business relationship will exclude many relationships
within the charity and NPO sector. The relationships of organizations with a focus on
education, medical care, research collaboration and public affairs, for example, may not
be based on donations and gifts, volunteer work or the definition of “club, association or
voluntary association” included in the Regulations, and in those circumstances they may
not be entitled to implied consent. It seems to be an inadvertent consequence of the
legislation that charities and NPOs be placed at a disadvantage compared to
businesses on the requirement to obtain express consents for electronic
communications. This unnecessary new layer of administration will be a drain on the
limited resources of charities and NPOs and will impede their good works.”
¬“It is critical that the uncertainty about application of the Act to the electronic
communications of charities and NPOs be resolved before the Regulations come into
force. Otherwise, charities and NPOs will be faced with the monumental task, with
limited resources, of seeking consent for many of its electronic communications without
a clear understanding of whether it is required.”


Canadian Bar Association
¬“The CBA Sections reiterate the concern expressed in our previous
submission on the vitiation of prior express consents valid under
federal, provincial or territorial legislation. There does not appear to be
a policy rationale for undermining the good faith effort by
organizations to obtain legally valid consents prior to the Act coming
into force. Recontacting consumers for consent already provided and
automatic expiry of consent after a transition period will likely create
confusion among consumers and undermine confidence in electronic
commerce, contrary to the legislative objective. The CBA Sections
recommend an additional regulation stating that a valid consent given
under PIPEDA or other privacy legislation prior to the Act coming into
force be deemed a valid consent under the Act.”


Interactive Advertising Bureau of Canada
¬ “In our view, there is no policy rationale for the statute to adversely impact
organizations that have previously obtained valid express consents under
Canadian Privacy Legislation. Without further regulatory clarification in this
regard, organizations would be compelled to “re-consent” their marketing lists
prior to CASL coming into full force. Unquestionably, consumers would not expect
or desire to receive multiple requests by organizations for another express
consent prior to CASL coming into full force. Consumers would expect to continue
to receive CEMs they’ve previously consented to receive. A re-consenting
process will result in Canadians collectively receiving millions of messages to reconfirm their consent. Consumers will consider this an annoyance, and these
types of messages may often be perceived as phishing. This is undoubtedly
completely inconsistent with the stated purpose of CASL, which is to reduce the
volume of unwanted messages. Consumers bombarded with these messages
from companies across the country will just start ignoring and deleting the
messages, which will result in list attrition for reasons that have nothing to do with
whether an individual wants to continue receiving messages from a particular
company. Moreover, a re-consenting process is an expensive process, which is a
particular burden to our small and medium sized members.”

Disproportionate and deleterious
impacts?
Philip Palmer (Formerly of Industry Canada)
¬ “No benefit to consumers is gained by restricting the transition
period to implied consents through the existing business
relationship. There is no reason why existing business
relationships should be favoured over other forms of implied
consent.
¬ The failure to act on the inequitable disparity between existing
business relationships and other types of implied consent serves
no discernible purpose and imposes unjustifiable compliance
costs on business.”


¬“We have now been working with CASL for over two years and have
a better appreciation of the compliance challenges and the potential
for unintended consequences resulting from CASL‟s regulatory
approach much more than we did when CASL was passed by
Parliament. The inclusion in CASL of both open ended prohibitions
and prescriptive requirements makes it very difficult to anticipate all of
the impacts that CASL will have. We are now more concerned than
ever that CASL will actually result in more harm than benefit to the
Canadian economy and to digital commerce. We are also concerned
that the harm will be exacerbated by the potential for litigation under
the private rights of action.”


¬ “This legislation will impose significant compliance costs on businesses
and other organizations that, in many cases, are ill-equipped to
undertake them. For instance, as of 2011, approximately 70% of small
businesses polled stated they do not currently have a website. As is
implied in the CRTC Compliance Guideline noted above, maintaining a
website or the purchase of a service to maintain the necessary
compliance data will be obligatory. Businesses already face many
regulatory compliance burdens and in its current form, CASL will result
in economic hardship for both business and not-for-profit
organizations.
¬ Without significant modifications to the regulations, this legislation will
impede commercial speech, an essential ingredient of market
competitiveness.”


Questions


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Tel: 403-260-3500
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Québec QC G1R 5G4
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UNITED KINGDOM
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Fax: +44 (0)20 7786 5702


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