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Setting the Record Straight On the ECPA (C-27)

By Michael Geist

The Industry Committee held two days of hearings on C-27, the Electronic Commerce Protection Act, this week with Industry Minister Tony Clement appearing on Tuesday and my appearance (together with CAUCE executives) on Thursday.  The line of questioning on both days was very similar and it is clear that some groups are seeking to sow seeds of doubt about the legislation.  I tried to address some of the misconceptions and inaccuracies during my appearance, but it is worth taking these claims head on (I will update as needed):

Messaging Provisions

Will the ECPA mean that businesses can't send newsletters, email updates, or other promotional materials to other businesses?

No.  Section 6(5)(b) includes an exception for legitimate business-to-business email.

Will the ECPA mean that I can't send emails to friends or family asking if they're interested in buying something from me or using my services?

No.  Section 6(5)(a) includes an exception for individual to individual email with a personal or family relationship.

Will the ECPA apply to non-commercial emails that I might send?

No.  The bill only applies to commercial email.

Why has Australia targeted direct marketing, while Canada talks about commercial messages?

Australia has not done that.  Both laws use commercial electronic messages.

Does the ECPA extend its jurisdictional reach too far beyond Canada's borders?

The law requires a connection to Canada to apply.  This is consistent with jurisdictional law more generally that mandates a real and substantial connection.

Will universities be blocked from sending commercial messages to alumnae?

No.  With opt-in consent, they can continue to send messages.  Even without such consent, universities are typically registered charities and thus qualify under the Section 10(6) exception for 18 months without the need for opt-in consent.

Will companies be prevented from sending consumers warranty or product recall information?

No.  In order to send consumers this information, companies must first obtain their contact information.  This provides an easy opportunity to obtain consent for sending future warranty or product recall information. Alternatively, companies will still be able to send information even without this consent for 18 months, providing ample opportunities to obtain the necessary consents.

Will real estate agents be unable to contact prospective clients via referral?

No.  Referrals can still take place as the personal relationship exception will allow for an individual to individual email that will facilitate a referral.  Alternatively, friends can simply provide the contact information for the real estate agent (which is typically the preferred approach anyway).

Does a business always need explicit, opt-in consent to communicate with customers?

No. Businesses can imply consent for 18 months for any existing customer.  That provides plenty of time to obtain an opt-in consent?

Does a business always need explicit, opt-in consent to communicate with potential customers?

No.  Businesses can imply consent for six months for any potential customer that has made an inquiry with them.

Software Provisions

Will software vendors be required to obtain consent before installing software updates?

Yes.  Software vendors should notify users what is they are installing on their computer and obtain consent before doing so.  Past experience involving cases such as the Sony rootkit provide ample evidence for why this is a good thing.

Does the ECPA stop web sites from using cookies?

No.  Cookies are text files and are not caught by the legislation.

Does the ECPA pose problems for the use of java or javascript on a webpage?

Possibly.  I have proposed some language to address this issue and Industry Minister Tony Clement has indicated his willingness to amend the law to address this concern.

Penalty Provisions

Does the ECPA contain very tough liability provisions?

Yes.  Experience in other countries shows that anti-spam law can only be effective with sufficiently tough penalties that create economic risk for spammers.

Is the private right of action really needed?

Yes.  Creating a private right of action was a recommendation of the Spam Task Force. Given the ongoing concerns about the enforcement history of the CRTC, Competition Bureau, and the Privacy Commissioner of Canada, a private right of action will allow the private sector to launch lawsuits of their own against Canadian-based spammers.  Previous lawsuits against Canadian-based spammers have been launched in the U.S., due to the absence of a Canadian private right of action.

Could the private right of action clog the courts?

Unlikely.  Unlike the U.S., Canadian class action lawsuits are rarer and there are court costs that create disincentives against frivolous lawsuits.

Email Harvesting Provisions

Will law enforcement be impeded due to the restriction on email harvesting?

Unlikely.  While the ECPA alters PIPEDA to address email harvesting, the numerous police powers to access far more than just an email address remain unchanged.

Full post as published by Michael Geist on June 12, 2009 (boomark / email).