Without any specific anti-spam legislation in force, is there any legal recourse under existing Canadian law to combat spam? As it turns out, there are no less than four legal avenues currently in existence in Canada that have, or could have, a role in combating spam. However, as noted below, these current avenues have disadvantages or to date have not been fully utilized.
- Privacy Commissioners. Under Canadian privacy laws, the consent of an individual is required for the collection, use, or disclosure of personal information. The Privacy Commissioner of Canada considers an e-mail address, as well as an IP address linked to an individual, personal information. At least according to the Privacy Commissioner, therefore, unsolicited e-mail sent to a person without their consent is a violation of Canadian privacy laws, except in very narrow exceptions. Consent may be either express or implied. Since implied consent under Personal Information Protection and Electronic Documents Act (PIPEDA) is viewed somewhat broadly in the case of less sensitive personal information (which may include e-mail addresses in certain circumstances) being used in a reasonable manner, a certain amount of flexibility exists under PIPEDA to send commercial e-mail provided an opt-out mechanism is included. Moreover, even if a breach of PIPEDA is found to have occurred, the Privacy Commissioner has relatively limited enforcement powers. Privacy Commissioner reports are in the first instance non-binding recommendations, and instances of privacy violations being prosecuted in the Federal Court by the Privacy Commissioner or a complainant for enforcement or damages are relatively uncommon.
- Competition Bureau. The federal Competition Act prohibits false or misleading advertising. It also prohibits anyone from sending, by electronic (or regular) mail, a document which gives the general impression that the recipient has won or will win a prize, if the recipient is asked or given the option to pay money or incur a cost. Given the nature of spam, a certain proportion of it violates these prohibitions and the Competition Bureau has taken certain steps in pursuing spam. Perhaps the most notable of these is the Competition Bureau’s Project FairWeb, which is aimed at combating misleading and deceptive advertising on the internet and in e-mail. However, the Competition Bureau’s focus is limited to the accuracy of the claims in the spam. It does not have the mandate to limit sending spam in the first place.
- Canadian Radio-television and Telecommunications Commission (CRTC). Under the federal Telecommunications Act, the CRTC may prohibit or regulate the use by any person of telecommunications facilities for the provision of unsolicited telecommunications to prevent undue inconvenience or nuisance. The CRTC can also impose significant administrative penalties of up to $1,500 for individuals or $15,000 for corporations. These sound like potentially powerful tools to combat spam, but historically the CRTC has chosen not to utilize them against spam.
- Police. The federal Criminal Code prohibits anyone who fraudulently and without colour of right intercepts information from within a computer system, which could include some hacking activities facilitated via e-mail. A mischief charge might also be possible under the Criminal Code if a large volume of spam caused obstruction or denial of access to data. Some of the more nefarious activities that are sometimes associated with spam, such as e-mails sent as part of fraudulent schemes, might also be subject to sanction under the Criminal Code. While these provisions could be used to counter certain criminal aspects of spamming activity, they do not directly regulate spam per se and do not appear to be regularly employed against criminal spammers.
It should be clear from this list that none of the existing legal avenues of recourse against spam in Canada is either fully equipped or fully employed to combat spam’s nuisance.
The federal government last year moved to introduce anti-spam legislation, passing Bill C-28, which people have taken to referring to as “CASL” for the “Canadian Anti-Spam Law.” CASL, however, is still not in force and is not expected to come into force until the middle of 2012 at the earliest, according to some reports. As Canada’s first piece of specific anti-spam legislation, it would greatly alter this legal landscape if enacted.