Anti-Spam Legislation Passed, Awaits Proclamation

David Canton has kept Slawyers abreast of developments concerning Canada’s anti-spam legislation: FISA – New Anti-Spam Bill Introduced; Plethora of Pending IT Legislation. But we neglected to report that Bill C-28 passed third reading on December 14 and received Royal Assent a day later. Evidently, it won’t be proclaimed in force until September of 2011, to give us all time to get our acts together.

The text of the statute is available here [PDF].

I’ve been coy about naming the beast (78 pages in the official version), because the name it goes by appears nowhere in the act. Everyone calls it FISA, which (almost) stands for Fighting Internet and Wireless Spam. But the proper name of the act is:

An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio- television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act

(Which, omitting the “little” words and the amendments, comes out to: PEACERCADREMCOCOA. Now, PEACE and COCOA — two of my favourite things — would work for me, and RCADREM is fairly pronounceable. Even so, you can see why folks have stuck with the old name. Notice, though, that nowhere in the legislation do the words “fighting” “internet” “wireless” or “spam” appear. I wonder what the interpretive status is of a non-title, non-marginal note.)

This is complex legislation that has come late to the world of spam. Canada is the last of the G-8 nations to pass an anti-spam law, which means two, perhaps opposing things: we’ve become very much used to sending emails (tweets, texts, etc.) unhindered by any law much beyond defamation; and our legislators have been able to learn from all the other countries that have assailed spam with varying degrees of success. Could be a bumpy right until we all figure out what’s what.

To help you do that, have a look first at Roland Hung’s precis of the bill in a special Gowlings newsletter. Then go to the earlier and broader legislative summary prepared last May for a slightly different version of the statute by Alysia Davies, from the Legal and Legislative Affairs Division of the Parliamentary Information and Research Service.

To give you a partial sense of how this law might change the way even non-spammers do things (or change our view of what constitutes “spam”), look at the first part of s.6:

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; . . .

You can see immediately the stress that will be placed on the definition of “commercial electronic message”:

1. (2) . . . 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 . . .

And lest you think you can escape the Catch 22 implicit in s.6:

1. (3) An electronic message that contains a request for consent to send a message described in subsection (2) is also considered to be a commercial electronic message.

This is going to be interesting.

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Comments

  1. It will be interesting to see what they do with chapter 23 when they put it up on justice.gc.ca. As I write this comment, only chapters 1 to 14 for 2010 are up. I’ll choose chapter 4 for the sake of comparison.

    Section 1 of the Canada–Colombia Free Trade Agreement Implementation Act, S.C. 2010, c. 4, gives this act its short title. The section is on the site in html as part of the annual (2010_4) statute, and as part of the consolidated (C-1.65) statute. The Justice two-column pdf version of the act, here, has, following the introductory matter, running headers, alternately English and French. The English header is "Canada–Colombia Free Trade Agreement Implementation".

    The Speaker’s versions of chapter 4 (Bill C-2) are on parl.gc.ca. The Speaker’s two-column html version is here, and has no running header. The Speaker’s two-column pdf version is here, and has the English running header "Canada–Colombia Free Trade Agreement Implementation".

    As noted, we only have the Speaker’s versions of chapter 23 (Bill C-28) so far. For some reason, chapter 23 didn’t give itself a short title. (It would be interesting to get an explanation from an insider.) The two-column html version, here, has no running header. However, the two-column pdf version, here, has the monstrous English running header "Canadian Radio-television and Telecommunications Commission, Competition, Personal Information Protection and Electronic Documents and Telecommunications." This is unimaginatively–and oddly–derived from the long title: An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act.

    Back to basics. Section 40(1)(a) of the Interpretation Act, R.S.C. 1985, c. I-21, provides:

    40. (1) In an enactment or document,
    (a) an Act may be cited by reference to its chapter number in the Revised Statutes, by reference to its chapter number in the volume of Acts for the year or regnal year in which it was enacted or by reference to its long title or short title, with or without reference to its chapter number; …

    A running header presumably has the status of a marginal note. Section 14 provides

    14. Marginal notes and references to former enactments that appear after the end of a section or other division in an enactment form no part of the enactment, but are inserted for convenience of reference only.

    We don’t have an enactment short title, but I think we should have a running header convenience-of-reference short title on justice.gc.ca. I hope the Minister of Justice will give us a more convenient-for-reference running header than the Speaker has.

    Section 26 of the Legislation Revision and Consolidation Act, R.S.C. 1985, c. S-20, provides:

    26. The Minister may maintain a consolidation of the public statutes of Canada and a consolidation of the regulations of Canada.

    Section 2 provides:

    2. In this Act, …
    "Minister" means the Minister of Justice and Attorney General of Canada;…

    Section 30 provides:

    30. The consolidated statutes and consolidated regulations do not operate as new law.

    The Minister of Justice obviously can’t add a section to the Act, but there seems to be no reason why the Minister couldn’t give us a suitable non-enacted short title for convenience of reference. Section 27 provides:

    27. In maintaining a consolidation of the statutes or regulations, the Minister may …
    (b) include historical references or other information that enhances the value of the consolidation; …
    (d) set out as a separate Act or regulation any Act or regulation enacted by another Act or regulation.

    I submit that "other information" is broad enough to include such a short title. Section 28(2) provides:

    28. (2) A publication in an electronic form may differ from a publication in another form to accommodate the needs of the electronic form if the differences do not change the substance of any enactment.

    As long as the short title is added only as a marginal note/running header (or electronic equivalent), it doesn’t change the substance of anything. We wouldn’t get the benefit of section 40 of the Interpretation Act, supra for such a short title, but it’s best practice always to give the year and chapter number anyway.

  2. I just checked the Table of Public Statutes and Responsible Ministers, as "Updated up to 2010, c. 25 and Canada Gazette, Part II, Vol. 144, No. 26 (22/12/2010)". S.C. 2010, c. 23 has been indexed as "Efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act, An Act to promote the". It doesn’t appear to be under the Es (or anywhere yet, as far as I can discover) in the Browse Statutes by Title section of justice.gc.ca.

  3. Our act has finally found its way to the justice.gc.ca site. It has been numbered E-1.6, for "Efficiency", just like in the Table of Public Statutes and Responsible Ministers. The English running header of the pdf of the current consolidation is "Canadian Radio-television and Communications Commission, Compe…–December 31, 2010". The English running header of the pdf of the annual statute is "Canadian Radio-television and Telecommunications Commission, Competition, Personal Information Protection and Electronic Documents and Telecommunications".

  4. Barry Sookman has picked up on the anti-spam bill long name thing in a post that gives us a bit of dialogue from the Standing Committee that looked at it in November of last year. He’s holding a contest to see who can give it the best short name. The prize? Some McCarthy schwag.

    If you’re not too tired of the whole thing, feel free to send us a copy by way of a comment of the short name you’re proposing to him. We don’t run to schwag here, alas, but we’ll dispense a big attaboy or attagirl to each and every submitter.

  5. coining (in)appropriate names is easy enough, provided one assumes that kosher analogous to anti-spam.

    We’d have

    the KKK Act – Keeping Kanata* Kosher Act. Ignoring why it isn’t apt, we focus on the fact that Kanata is near Ottawa and has important ‘hi-tech’ connections.

    the KCK act – Keeping Canada Koser Act – which probably would have a bad smell about it if one choses the wrong vowel sound between the K-C; or it might get kicked about.

    the MICK Act – Making Interent Comuminications Kosher Act – which would probably become the Mickie act (as in Mouse, though probably the other kind is equally apt)

    I’ll stop now.

    hmmm.. the reCaptcha include “Sumeria”. Did the Sumerians have cuneiform spam?