Demise of Anti-Spam Bill is an Opportunity for Key Improvements
How is the Federal Anti-Spam legislation affected by the recent end of the Parliamentary session?
Bill C-27 is technically dead, but with unanimous consent of all MPs the same bill could be restored to its previous status as passed by the House of Commons and immediately sent off again for final review in the Senate. But that would be unfortunate because expiry of the existing bill gives the Government and Parliament a chance to pass improved legislation that cracks down on real spammers without unnecessarily harming legitimate businesses. In particular, a new and improved Bill would:
a) clarifiy how the consent reguirements of an anti-spam law will affect ethical marketers and ensure that these are generally in line with our Privacy Law (PIPEDA) requirements for non-sensitive personal information, and
b) exclude those parts of the last bill that would have allowed the Government to dismantle the
National Do Not Call List at some unspecified future date without returning to Parliament with new legislation and a proper review of the program.
As a member of Industry Canada's Anti-Spam Task Force in 2004, the Canadian Marketing Association has been a strong proponent of the need for a new law to help combat spam and enhance consumer confidence in the online marketplace. But CMA also registered concerns about the consent-related aspects of Bill C-27. A key problem with C-27 is that it refers to express and implied consent without fully addressing how these are defined - much of that task was to be addressed later in the detailed regulations.
The fact is that Canadian marketers are strongly oriented toward permission-based marketing when it comes to using personal information; that is required by PIPEDA and CMA's longstanding Code of Ethics. But the standard of consent to collect, use and transfer non-sensitive personal contact info for marketing as enshrined in PIPEDA (see section 4.3, Schedule 1) is definitely opt-out. Implied consent is sufficient to some degree where one is talking about marketing to existing customers. That's not to say that obtaining opt-in consent isn't a "best practice" appropriate in certain direct marketing situations - for example, for mobile e-marketing campaigns.
But a "best practice" is a far cry from a legislated requirement for opt-in consent for virtually all electronic marketing communications to consumers. The economic costs to businesses of such a legislative requirement will be considerable. All the experience in business and other fields indicates that a move to an opt-in requirement would significantly reduce the number of consumers that legitimate businesses can reach through e-communications. Why would we want to do that? Under PIPEDA, Canadians who really don't wish to receive direct marketing communications can already opt-out beforehand, or could do so later given that C-27 required that every electronic marketing communications would have to contain an easy opt-out (already a requirement in the CMA code for many years now).
As the "digital revolution" continues to unfold, and businesses and other organizations look for new ways to achieve efficiencies by moving activities online, why would we want to see unreasonable restrictions on legitimate marketers’ use of the electronic medium? A full opt-in regime certainly won't stop the major spammers and their botnets from filling our inboxes - illegal spammers don't obtain any form of consent to collect or use personal contact information in the first place!
Much has been said about Canada needing a law to do its part to combat Spam, and CMA certainly agrees because it will allow us to cooperate with other countries and to go after major spammers operating in this country. And a tough anti-spam law that reflects current PIPEDA standards for consent (opt-out) would definitely allow enforcement agencies to crack down on spammers without harming legitimate businesses. It's worth noting here that the advocates of full opt-in constantly overlook the fact that "opt-in countries" like Germany, France, Spain, Italy and the UK all remain on the Spamhaus top-ten list of spam-originating jurisdictions. The fact is that no anti-spam law can have a major impact unless there is vigorous enforcement. While a clear requirement for consent to use personal contact information is an essential ingredient, whether it’s opt-in versus opt-out has no real bearing on the efficacy of an anti-spam law; however, opt-in would definitely have the undesirable effect of making life tougher and in many instances raising costs for legitimate businesses.
The "death" of Bill C-27 provides a great opportunity for the Government and Parliament to craft a better balanced anti-spam law for Canada.
By Wally Hill, VP, Public Affairs & Communications, CMA
