The House of Commons Standing Committee on Industry, Science and Technology began yesterday their review of the Canadian Anti-Spam Law. The CRTC launched the presentation by addressing those key areas that are of concern to Parliamentary deputies. Little news has been made available to the public, but we’ve been on the watch and below you’ll find highlights from the review.
A questionable discretion
Considering that this law is the one that generates the most complaints from consumers, that it has been decried and actively challenged for years by lobbyists since its adoption seven years ago, it’s surprising that this review process was not publicly announced.
In fact, the only place where information has been disclosed is on the Committee’s agenda, which is generally followed only by professional lobbyists. However, given the importance of this legislation, and how much it affects ALL Canadian businesses, it was expected that this process would have been publicly announced, at least to those organizations concerned, to allow them to prepare for the Committee’s reflection.
One has to wonder what’s with all the discretion.
Department officials’ and the CRTC’s opening remarks
The first session was devoted to the hearing of department officials:
- Mark Schaan, Director General, Marketplace Framework Policy Branch, Innovation, Science, and Economic Development Canada
- Charles Taillefer, Director of Digital Transformation Service Sector in the Privacy and Data Protection Policy Branch, for Innovation, Science, and Economic Development Canada
Followed by CRTC officials:
- Steven Harroun, Chief Compliance and Enforcement Officer
- Neil Barrat, Manager, Strategic Policy & International Affairs
- Kelly-Ann Smith, Senior Legal Counsel
In his address, Mr. Schaan gave a brief history of the law. He affirmed the law’s effectiveness and went on to say that spam has been reduced by more than one-third in Canada, explaining the importance of this legislation for the development of e-business in Canada.
The floor was then given to the CRTC. In his speech, Mr. Harroun cited the various enforcement mechanisms used to apply CASL, ranging from warning letters to administrative monetary penalties, to notices of violation and commitments.
He then highlighted the CRTC’s public education and awareness efforts, in particular for businesses, indicating that a total of 6 conferences were held in Toronto last May that reached 1,200 companies. One deputy member reminded him that Canada was not limited to Toronto. Finally, he explained the work done by the CRTC at the international level to develop collaborative agreements with the authorities of several other countries.
Requests for information are evolving
In response to the Committee’s first question, Mr. Harroun argued that requests for information received by the CRTC from businesses are increasingly about the development of compliance programs. While in 2014, the questions were more about the concept of consent and unsubscribe links. He then went on to stress the effectiveness of the various penalties that the CRTC can impose on companies.
The Private Right of Action
On June 7th, Minister Bains announced that he was temporarily suspending the private right of action (PRA), which was to begin on July 1, 2017, pending parliamentary scrutiny of CASL. It was therefore normal that the implementation of this right of appeal was the subject of several questions by members of the Committee.
These questions allowed Mr. Schaan to explain why the department had decided to suspend the PRA.
In particular, he explained that the main reasons are the risk of multiplying costly class action suits and the fact that there are still many gray areas concerning CASL compliance.
The CRTC, for its part, insisted that the PRA is an important enforcement tool and that similar measures are already present in the legislation of several countries, in particular, the United States, Australia, and the United Kingdom.
Already more than 1.1 million registered complaints
Mr. Barrat indicated that the CRTC has already registered more than 1.1 million complaints in its spam reporting center, which is the primary source used for investigations. And that complaints continue to enter at a rate of 5,000 per week. He also noted that complaints result from the activities of all industrial sectors and all sizes of businesses including the not-for-profit sector.
CASL is effective
As the committee continued, Mr. Schaan demonstrated the effectiveness of CASL by citing various independent reports. He referred to a US report showing that one year after the Act came into force, the number of emails received by Canadians decreased by 29%, and the volume of spam from Canada fell by 37%. He also cited a study done by Ipsos on behalf of CIRA showing that by October 2014, 62% of Canadians were aware of CASL and believe in its effectiveness. In fact, 84% of them had already taken advantage of it to reduce the volume of commercial messages they received. For their part, 49% of companies felt that the Canadian Anti-Spam Act Law had no impact on their marketing, 23% felt that the impact was minimal and 27% said they had a significant impact.
Mr. Schaan pointed out that Canada was one of the top 5 countries for generating spam. But since the passing of the bill, Canada is not even in the top 10.
The RCMP called in for collaboration
In a question on the means used to manage the international dimension of spam arriving in Canada, the CRTC explained that cooperation and agreements with authorities in other countries were increasing and that there was no particular difficulty at this level. However, he stressed that he doesn’t receive similar collaboration locally, particularly with the RCMP. He indicated help from them would be beneficial in enforcing CASL.
More than 30 completed investigations
The CRTC indicated that during the grace period it completed more than 30 investigations, of which only six have been made public to date. All other investigations are still in the process of negotiating commitments with collaborating companies. Some of the complaints received at the spam notification center are shared with the RCMP for criminal investigations to be conducted.
CASL as a benchmark
Witnesses indicated that the notion of consent as defined in the Canadian Anti-Spam Law is the benchmark for the ongoing revision of the Personal Information Protection and Electronic Documents Act currently being conducted by the Privacy Commissioner.
Meanwhile, MPs have made many parallels between the rules of CASL and that of the National Do Not Call List’s Rules, which is enforced by the same CRTC’s team and generates more than one hundred investigations per year for half the number of complaints received under CASL.
The CRTC is unable to provide numbers
A curious fact to note is that with each question relating to numbers and complaints or investigations, the CRTC was unable to answer. This was also the case when asked about the industrial sectors that generated the most complaints, the number of investigations and fines, and the types of complaints received.
When the Honourable Maxime Bernier inquired about the financial impact on businesses of becoming compliant, the CRTC was still unable to provide even estimates.
You can listen to the full recording of the exchanges on the committee’s website until the transcription is published. Until then, we are currently taking steps to obtain the dates and participants of the next sessions, as well as to take part in the debates to present the point of view based on the dozens of SMBs in Quebec that we have already helped to implement CASL compliance programs.