Barely nine months after the Canadian Radio-television and
Telecommunications Commission launched its long-awaited Do-Not-Call
List (DNCL) to cut down on unwanted telemarketing calls, the
Canadian government introduced legislation that will, if
implemented in its current form, kill off the DNCL and replace it
with a much stricter regime.
The source of this unexpected initiative is Bill C-27, the
Electronic Commerce Protection Act (ECPA),
Canada's proposed legislation to curtail spam and spyware.
Under the ECPA, all electronic messages to encourage
participation in a commercial activity are banned unless they fall
under certain permitted exemptions (e.g., where prior consent is
obtained or a pre-existing relationship exists between sender and
recipient that is not more than 18 months old).
Although the clear focus of the ECPA is e-mails, the
proposed legislation contains sections that extend the definition
of "electronic message" beyond e-mails to include voice
calling. This is not simply a matter of over-reaching definitions.
Bill C-27 contains sections that deliberately revoke the
DNCL-enabling provisions in the Telecommunications
The ECPA's approach of the consumer having to
consent to receive commercial electronic messages (the
"opt-in" model) is in contrast to the DNCL's
approach, where all telemarketing calls are permitted unless the
consumer has taken the step of registering his or her number with
the DNCL administration (the "opt-out" model). The former
approach should be easier for the CRTC to administer, as it will
not need to maintain a database of opt-out consumers. However,
businesses that wish to engage in messaging activities will find a
narrower scope of permitted activity.
Government officials have indicated that they do not intend to
invoke the DNCL-ending sections of Bill C-27 anytime soon, but that
they want to have the legislative framework in place so the
government can do so in the future when such a step becomes
desirable — without the need to go back to Parliament.
What will trigger such action? The officials won't say,
although they do suggest that any change will be preceded by
McCarthy Tétrault Notes:
Any decision to terminate the DNCL and apply the ECPA
to voice calling will have a dramatic impact on Canadian business.
Suddenly, all calls to encourage participation in a commercial
activity will be illegal except where permitted by specific
exemptions. Unless the exemptions that are available in Bill C-27
are expanded, business-to-business cold calling, which is allowed
under the DNCL, will be forbidden. Moreover, when permitted, every
such voice call will have to comply with specific requirements,
including the perplexing, e-mail-oriented requirement "to set
out an 'unsubscribe' mechanism." Constraints such
as these will make it difficult for Canadian businesses to reach
out to new customers.
Start-up businesses will be particularly hard hit. Indeed, it is
hard to see how any business could start up in Canada if it cannot
make cold calls or send e-mails to prospective customers. Unless
changes are made to the ECPA, some entrepreneurs will
probably find it easier, and less risky, to set up outside the
country and market to Canadian businesses from there.
Bill C-27 is presently before Parliament. Business groups are
making representations to parliamentarians on many aspects of the
Bill ― including, we expect, the sections intended to
kill off the DNCL and replace it with the ECPA. It will be
interesting to see how the government responds.
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