The Canadian government recently tabled legislation that would impose stiff penalties for sending unsolicited commercial electronic messages (spam) or surreptitiously installing malicious software programs on computers without the owner's consent (spyware). Bill C-28, Fighting Internet and Wireless Spam Act (FISA), also contemplates amendments to the Competition Act, the Personal Information Protection and Electronic Documents Act, and the Telecommunications Act.
The FISA represents the government's second attempt to introduce legislation to combat spam and spyware. As we previously reported, last year the government tabled the Electronic Commerce Protection Act (ECPA), which also sought to curb spam and spyware. That bill was extensively amended before it was passed by the House of Commons. When Parliament was prorogued later in the year, the ECPA died on the order paper. The FISA's anti-spam and anti-spyware provisions are largely unchanged from the amended version of the ECPA.
Like its predecessor, the FISA would prohibit organizations from sending commercial electronic messages to an electronic address unless the sender has the recipient's express or implied consent. "Electronic message" is defined broadly to include any "message sent by any means of telecommunication, including a text, sound, voice or image message." It would include e-mails, text messages, or instant messages, and so could encompass many forms of electronic communication including "tweets" or Facebook® postings.
The FISA retains certain exceptions to this rule, which appeared in the amended ECPA. Under the FISA, consent is not required to send a commercial electronic message, the purpose of which is to:
- provide a quote or estimate;
- facilitate, complete, or confirm an existing commercial transaction;
- provide warranty information;
- provide information related to an ongoing subscription, membership, account or loan;
- provide information related to an employment relationship; or
- deliver a product, goods or a service, including product updates and upgrades.
The list is not exhaustive, as other purposes may be specified by regulation.
The bill also provides for certain situations where consent can be implied, including where:
- the sender has an existing business relationship with the recipient (provided the relationship is entered into within the specified timeframe);
- the recipient has "conspicuously published" its electronic address and has not indicated a desire to not receive unsolicited commercial electronic messages, and the message is relevant to the recipient's business role; or
- the recipient has provided its electronic address to the sender without indicating a wish not to receive unsolicited commercial electronic messages.
When requesting express consent to send unsolicited commercial messages, an organization would have to set out "clearly and simply" the purpose(s) for which the consent is being sought, information identifying the organization that is seeking the consent, and any other information that may be prescribed.
The FISA also stipulates that electronic messages must:
- identify the sender;
- provide contact information for the sender; and
- include an "unsubscribe" mechanism (either a link or an e-mail address), so that recipients can opt out of receiving future communications. This mechanism must allow recipients to indicate that they no longer wish to receive the messages, and the e-mail address or link must be valid for at least 60 days after the message has been sent. If an organization receives an "unsubscribe" request, it must act on it within 10 business days.
To combat spyware, malware and botnets, the FISA would prohibit the installation of computer programs without the consent of the computer's user or owner. The bill would also require, before any software is installed on a computer, that the organization requesting consent, or the program itself, "describe clearly and simply the function and purpose of every computer program that is to be installed." However, if a program performs certain potentially undesirable functions, it must additionally bring its "foreseeable impacts" to the attention of the user, which could require significant disclosures from software manufacturers. The prescribed list of undesirable functions is similar to those found in international anti-spyware law precedents, and includes:
- collecting personal information stored on the computer system;
- interfering with the user's control of the computer system;
- changing or interfering with settings or preferences on the computer system without the user's knowledge;
- interfering with access to or use of that data on the computer system;
- causing the computer system to communicate with another computer system without the authorization of the user; or
- installing a computer program that may be activated by a third party without the knowledge of the user.
The FISA also prohibits altering transmission data in a message, or causing it to be altered to route the message to an unintended destination without the sender's express consent or a court order. This provision is aimed at activities such as "man-in-the-middle" attacks (intercepting and redirecting messages without the parties' knowledge) and "phishing" (impersonating a legitimate organization to steal valuable personal data).
At this time, the FISA does not address two-way voice communication between individuals, notably telemarketing. Telemarketing is regulated under the Telecommunications Act, in particular the Do Not Call List (DNCL). The FISA does, however, contain a provision permitting the government to revoke the DNCL-enabling provisions in the Telecommunications Act and to include telemarketing under the FISA. Should the government do so, telemarketing would then be covered by the more stringent opt-in model for unsolicited commercial messages under the FISA (versus the current opt-out model under the DNCL).
Amendments to Other Acts
In addition, the FISA would introduce amendments to the Competition Act to prohibit false or misleading commercial representations made electronically. It would also amend the PIPEDA to prohibit the collection of personal information by means of unauthorized access to computer systems, and the unauthorized compiling of lists of electronic addresses.
Penalties and Private Right of Action
If the FISA is passed, violators could face fines of up to $1 million for individuals and $10 million for organizations per violation of certain provisions. The FISA would also create a private right of action that would allow businesses and consumers to take civil action against anyone who violates the FISA on a lower "balance-of-probabilities" standard. The court will be able to order compensation in an amount equal to the actual loss or damage suffered or expenses incurred by the applicant. It can also award damages of $200 per contravention to a maximum of $1 million per day, for most contraventions.
McCarthy Tétrault Notes
In our previous TLQ article, we reported that the Canadian Chamber of Commerce had expressed concern about certain amendments to the PIPEDA in the ECPA. The Chamber was worried that these amendments, which were intended to prevent malicious acts such as e-mail harvesting and computer hacking to access personal information, would render ineffective certain key exceptions in the PIPEDA, including the exception that permits the collection of personal information for the purposes of investigating breaches of an agreement or the contravention of federal or provincial law.
The FISA addressed these concerns by specifically noting that collections of personal information currently excepted in the PIPEDA would only violate the FISA if the information were to be collected in violation of federal law (including the FISA itself). This key change to the FISA over the ECPA has the effect of focusing this provision specifically on the acts it intends to prohibit (e-mail harvesting and computer hacking), while still permitting business and individuals to collect personal information electronically for certain beneficial purposes such as fraud detection and prevention.
Since the FISA is largely a derivative of the ECPA that the House of Commons has already passed, it is expected to be fast-tracked through Parliament. Should the FISA come into effect, organizations will need to:
- review and update their forms for obtaining express consent to send commercial electronic messages, or install software programs to ensure that the forms satisfy the prescribed requirements;
- re-examine their procedures for documenting that consent, as the onus will rest on senders and software developers to prove they obtained consent;
- ensure that any commercial electronic message includes the prescribed information and an unsubscribe mechanism that is operational for the specified period;
- deal with unsubscribe requests within the requisite time frame;
- ensure that any process that involves online collection of e-mail addresses or other personal information complies with the amendments to the PIPEDA; and
- in the case of software developers, examine their program-installation procedures to ensure that information about the function and purpose of the program is provided prior to installation. In addition, if the program performs one of the prescribed undesirable functions, the mechanism will also need to include further information about the foreseeable impacts of these functions.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.