By John Jager, CIPP/US, CIPP/C , CIPP/G

After much discussion and consultation on the accompanying Regulations, Canada’s anti-spam legislation is about to take full effect. While the CRTC had previously published its regulations on March 28, 2012, the Electronic Commerce Protection Regulation was finally published on December 4, 2013.

As of July 1, the majority of the act comes into effect, with the provisions dealing with unsolicited installation of computer programs or software taking effect January 15, 2015. Finally, on July 1, 2017, the provisions relating orders of the court and rules about contraventions and reviewable conduct come into force.

The act will be enforced by three federal agencies, namely, the Canadian Radio-television and Telecommunications Commission (CRTC), the Competition Bureau and the Office of the Privacy Commissioner of Canada (OPC). The CRTC has primary enforcement responsibility and will investigate and set administrative monetary penalties for violations relating to sending noncompliant commercial electronic messages, altering transmission data without express consent and installation of a computer program on a computer system or network without the express consent. The Competition Bureau will address false and misleading representations and deceptive marketing practices; e.g., false or misleading sender or subject matter information, electronic messages and locator information such as URLs and metadata. The OPC will enforce the act in relation to the collection of personal information through access to computer systems contrary to an act of Parliament and electronic address harvesting where bulk e-mail lists are compiled through mechanisms.

As their enforcement activities may overlap, the agencies have entered into a Memorandum of Understanding for Cooperation, Coordination and Information Sharing (MOU), which sets out a framework for “cooperation and coordination among participants in relation to enforcement activities under Canada's Anti-spam Legislation” and “the treatment of information that is shared among the participants for the purpose of facilitating enforcement activities.” The MOU provides that the agencies will notify each other of their enforcement activities that may potentially affect any of the other agencies’ interests, and the agencies may share information in the course of such activities. Where any agency has identified possible overlapping enforcement activities, the agencies will “independently consider whether engaging in joint or parallel enforcement is appropriate”. As a default, the position is that the agencies will seek to coordinate their efforts, unless it would be inappropriate to do so. The MOU provides that if the commissioner of competition decides to pursue enforcement activity under the criminal provisions of the act, the commissioner will advise the other agencies of such a decision, and, as a result, “all cooperation and information-sharing with respect to that specific enforcement activity will cease between the commissioner of competition and the other participants.”

The MOU comes into effect on the date that the act comes into force.

John Jager, CIPP/US, CIPP/C, CIPP/G, is vice president of research services at Nymity, Inc., which offers web-based privacy support to help organizations control their privacy risk. He may be reached at john.jager@nymity.com.


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