The Canadian Privacy Law Blog: Developments in privacy law and writings of a Canadian privacy lawyer, containing information related to the Personal Information Protection and Electronic Documents Act (aka PIPEDA) and other Canadian and international laws.
The author of this blog, David T.S. Fraser, is a Canadian privacy lawyer who practices with the firm of McInnes Cooper. He is the author of the Physicians' Privacy Manual. He has a national and international practice advising corporations and individuals on matters related to Canadian privacy laws.
For full contact information and a brief bio, please see David's profile.
The views expressed herein are solely the author's and should not be attributed to his employer or clients. Any postings on legal issues are provided as a public service, and do not constitute solicitation or provision of legal advice. The author makes no claims, promises or guarantees about the accuracy, completeness, or adequacy of the information contained herein or linked to. Nothing herein should be used as a substitute for the advice of competent counsel.
This web site is presented for informational purposes only. These materials do not constitute legal advice and do not create a solicitor-client relationship between you and David T.S. Fraser. If you are seeking specific advice related to Canadian privacy law or PIPEDA, contact the author, David T.S. Fraser.
Monday, April 27, 2009
The Industry Minister tabled the Electronic Commerce Protection Act (ECPA) in Parliament at the end of last week. Here's the government's press release and backgrounder:
Industry Canada Site - Government of Canada Protects Canadians with the Electronic Commerce Protection Act
Government of Canada Protects Canadians with the Electronic Commerce Protection Act OTTAWA, April 24, 2009 — The Honourable Tony Clement, Minister of Industry, today announced that the Government of Canada is delivering on its commitment to protect consumers and businesses from the most dangerous and damaging forms of spam. The government has introduced legislation in Parliament that aims to boost confidence in online commerce by protecting the privacy and personal security concerns that are associated with spam, counterfeit websites and spyware.
The proposed Electronic Commerce Protection Act (ECPA) will deter the most dangerous forms of spam, such as identity theft, phishing and spyware, from occurring in Canada and will help drive spammers out of Canada.
“Our government knows how damaging spam can be to Canadians and Canadian businesses and that is why we are cracking down on Internet fraud and other forms of malicious activities,” said Minister Clement. “With this landmark legislation, our government will help protect consumers from Internet spam and related threats and boost confidence in the electronic marketplace.”
Spam and related online threats are a real concern to all Internet users as they can lead to the theft of personal data, such as credit card information (identity theft), online fraud involving counterfeit websites (phishing), the collection of personal information through illicit access to computer systems (spyware), and false or misleading representations in the online marketplace. The proposed legislation would also treat unsolicited text messages, or “cellphone spam,” as “unsolicited commercial electronic messages.”
This bill would allow businesses and consumers to take civil action against anyone who violates the ECPA. The Canadian Radio-television and Telecommunications Commission (CRTC), the Competition Bureau and the Office of the Privacy Commissioner will be given the power to share information and evidence with their counterparts in other countries who enforce similar laws internationally, so that violators beyond our borders cannot use Canada as a spam safe haven. The proposed ECPA would allow the CRTC and the Competition Bureau to charge offenders with administrative monetary penalties of up to $1 million for individuals, and $10 million for all other offenders.
Under the new legislation, Industry Canada will act as a “national coordinating body” in order to increase consumer and business awareness and education, to further coordinate work with the private sector in support of voluntary guidelines, and to conduct research and intelligence gathering.
As part of the proposed ECPA, new legislative measures would complement the federal government's previous efforts to address spam and related online threats.
In introducing this legislative proposal, the Government of Canada wishes to thank Senators Donald Oliver and Yoine Goldstein for their efforts to help address this issue. The bill also addresses the legislative recommendations of the Task Force on Spam. The Government of Canada, Canadian business and Canadian consumers owe a debt of thanks to Senators Oliver and Goldstein and to the Task Force for their contributions to the protection of electronic commerce and the online economy.
April 24, 2009
Government of Canada Introduces the Electronic Commerce Protection Act On April 24, 2009, the Government of Canada introduced anti-spam legislation, entitled the Electronic Commerce Protection Act (ECPA). In doing so, the government is delivering on a key commitment made by Prime Minister Harper to Canadians and Canadian businesses in September 2008.
This bill addresses the legislative recommendations of the Task Force on Spam, which brought together industry, consumers and academic experts to design a comprehensive package of measures to combat threats to the online economy.
The intention of the proposed legislation is to deter the most dangerous and damaging forms of spam from occurring in Canada and to help to drive spammers out of Canada.
The government studied successful legislative models in other countries and, based on their experiences, has developed a focused plan to address spam and related threats. By tabling legislation now, the government is able to address the latest technology and online threats.
This bill proposes a private right of action, modelled on U.S. legislation, which would allow businesses and consumers to take civil action against anyone who violates the ECPA. The proposed ECPA's technology-neutral approach allows all forms of commercial electronic messages to be treated the same way. This means that the proposed bill would also address unsolicited text messages, or “cellphone spam,” as a form of “unsolicited commercial electronic message.”
The bill would establish a clear regulatory enforcement regime consistent with international best practices and a multi-faceted approach to enforcement that protects consumers and empowers the private sector to take action against spammers.
An important component of the proposed ECPA is the enforcement regime whereby the Canadian Radio-television and Telecommunications Commission (CRTC), the Competition Bureau and the Office of the Privacy Commissioner would be given the authority to share information and evidence with their counterparts who enforce similar laws internationally, in order to pursue violators beyond our borders.
The proposed ECPA would enable the CRTC to impose administrative monetary penalties (AMPS) of up to $1 million for individuals and $10 million in all other cases. The Competition Bureau would use a similar AMPS regime already provided for in the Competition Act,and the Office of the Privacy Commissioner would use its existing tools and enforcement framework to enforce the provisions of this legislation. The bill also proposes that the Privacy Commissioner's powers to cooperate and exchange information with her counterparts be expanded, in respect of the Personal Information Protection and Electronic Documents Act.
Consultations show support from consumers, Internet service providers, marketers, businesses, educators, the financial sector, legal and consumer groups, and enforcement agencies.
Under the proposed ECPA, Industry Canada would act as a “national coordinating body” in order to expand awareness and education of consumers, network operators and small businesses, coordinate work with the private sector, and conduct research and intelligence gathering.
The government also intends to create a Spam Reporting Centre that would receive reports of spam and related threats allowing it to collect evidence and gather intelligence to assist the three enforcement agencies (the CRTC, the Competition Bureau and the Office of the Privacy Commissioner).
Businesses will benefit from improved protection against harm to the network and from consumers' strengthened confidence in the online marketplace.
The Internet has become the primary platform for online commerce and general communications. The online marketplace represents a major segment of Canada's economy, with $62.7 billion in sales in 2007. Worldwide, electronic commerce is projected to exceed $8.75 trillion in 2009.
At the same time, there has been an enormous increase in the vulnerabilities and threats to the Internet and online commerce. Spam now makes up over 80 percent of global email traffic, imposing huge costs on businesses and consumers.
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