I just listened to a teleseminar by the Canadian IT-Law Association on the Anti-spam act, primarily discussing the CRTC’s role. Here are a few points that were raised.
The act is expected to come into force in September. Regulations may be published for comment as early as late February or March.
The regulations will be crucial. It will be important to look at them during draft stage and comment where necessary.
There will be an overlap in jurisdiction between the CRTC, Privacy Commissioner, and Competition Bureau, though CRTC is primary.
The CRTC role as enforcer is fairly new. The do not call list was its first real enforcement mandate, as opposed to a supervisory and licensing role.
CRTC has power to issue preservation demands to telecommunication service providers, to issue production orders, and warrants for entry and inspection.
Penalties are AMPs, or Administrative Monetary Penalties. They can be imposed by the CRTC without going to court. The Act says they are not intended to punish, but to deter. AMPs have in the past been described as unconstitutional.
CRTC can apply to court for an injunction, can issue a restraining order, and can enter into undertakings (i.e. a form of settlement). Are also some offences under act, e.g. if fail to comply with an order.
A private right of action is included in the Act. For actual damages – or for statutory damages. Class actions are possible.
Once an undertaking is entered into, it restricts all other actions, including the private right of action. (It will be interesting to see if a defendant in a class action would immediately go to the CRTC and try to enter into an undertaking.)
The CRTC will have a significant budget for enforcement.
