Reasonable Doubt: Stephen Harper’s stand against spam
During Stephen Harper’s time in office, he has voiced opposition to commercials that are louder than the TV program you’re watching, and annoying spam in our inboxes and on our computers. Like most of us, I guess Harper just likes to go home at the end of the day and relax with a TV show without being blasted during the commercials. Similarly, he must just get really ticked off by the relentless emails he receives from various corporations that have collected his personal email address over the years.
I’m not sure what happened to his battle against loud commercials, but as many of you know, Canada’s anti-spam legislation came into effect on July 1, 2014. In case you wanted to search the Act by name and see for yourself if your most irritating spammer is complying with the legislation, you’ll find the Act under the more bureaucratic title: An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act. Creative, no?
The Act requires that anyone sending a commercial electronic message (spam) to a electronic address (email) must have your express or implied consent to receive the commercial electronic message. The message must also set out who is sending the message, how to contact the person sending the message, and have an unsubscribe mechanism in the email.
To be clear, the Act also states that this law applies to any message that is sent from a computer in Canada or accessed by a computer in Canada; i.e. those overseas spammers are not exempt!
Not only does the Act protect you from email spammers, but spammers that might try to install computer programs on your computer without your consent. It also protects you against crafty computer savvy businesses altering transmission data for an email you send from your computer to be sent to a destination you did not specify.
The week prior to the Act coming into effect, we all saw a barrage of frantic emails in our inbox from corporations begging us to allow them to keep sending us emails. As I’ve learned recently, the most effective marketing tool that businesses rely on is their email list of potentially interested consumers. Sending out regular emails to potential consumers allows a business to build a relationship with individuals and keeps a business front of mind for a consumer for that moment when the consumer may need their services.
So if email marketing is such an effective tool for marketing, would it be worthwhile for a business to live dangerously, continue to send emails in contravention of the Act, eat the fine or other punishment, and reap the rewards of relentless email marketing?
Violations of the Act are treated with an administrative “penalty”. If after an investigation, the CRTC determines that a business has violated the Act, they can serve a Notice of Violation on the business. The business has 30 days to contest the allegations or pay the penalty set out in the Notice. The Act makes it clear that the monetary “penalty” is not a punishment, but intended to promote compliance with the Act. There are a number of factors that must be taken into effect when imposing a penalty against a business, one of which is the financial benefit the business received by committing the violation. The maximum penalty for an individual is $1 million; the maximum penalty for a business that is not an individual is $10 million.
We have yet to see how the CRTC will impose the penalties, if they are imposed like fines under the Criminal Code or Offence Act, they will be nowhere near the maximum amount for first few-time offenders. If they are truly imposed to promote compliance with the Act, then for successful businesses, they could be quite hefty.
Now if you want to make a business pay for continuing to fill up your inbox without your consent (express or implied, mind you), then you have two options. You can report the violation to the CRTC (as at least 1,000 other people did on July 2, 2014) or you can start your own lawsuit. You can only start your own lawsuit in the superior court of your province or Federal Court, if the business has not already been served with a Notice of Violation by the CRTC.
If you are successful in your lawsuit, you can receive compensation for any monetary damages you suffered and the amount of penalty imposed on the business. For email spam, a litigant can receive up to $200 for each email they received without giving their consent to a maximum of $1 million.
If you are successful in proving that a computer program was installed on your computer without your consent, or someone messed with your intended destination of your email, then you can collect up to $1 million for each day that the contravention occurred.
Before you race to file your lawsuits, if you think you are a victim of a contravention of the Act, review the Act yourself and talk to a lawyer. I have not been able to fully canvas the entire Act in this article. There are many nuances to that Act, which cannot be addressed in this short space.