Canada’s Anti-Spam Law: Enforcement Discretion and Guidelines

Canada has a new anti-spam law. Sending commercial electronic communications without the recipient’s consent is no longer permitted. But “commercial activity” is very broadly defined: “any particular transaction, act or conduct or any regular course of conduct that is of a commercial character, whether or not the person who carries it out does so in the expectation of profit…” An awful lot is going to get caught in this particular spam filter (as those who have been bombarded with consent requests will appreciate).

Via Michael Geist comes an important statement from the Chair of the Canadian Radio-television and Telecommunications Commission on its enforcement obligations:

punishment is not our goal. We are not going to go after every indie rock band that’s trying to sell a new release to its fans. We have much bigger fish to fry. The CRTC will focus on the most severe types of violations. This means you may still receive the occasional spam message after July 1st. Our principal targets are abusive spammers and interlopers involved in botnets and, come January, malware and malicious URLs. Our responses to complaints will range from written warnings up to financial penalties or court actions. Our objective is to secure compliance and prevent recidivism. I believe the best enforcement approach should be determined by the facts surrounding each particular case.

In other words, the statute is drafted so broadly that the CRTC has no choice but to focus its enforcement resources.

It is going to have to be careful. The law surely infringes on freedom of expression. Even though less protection is afforded to commercial speech, any such infringements must be “prescribed by law” and there is no guarantee that the CRTC’s enforcement discretion — without more — will pass the test. In exercising its discretion, the CRTC would be well advised to publish guidelines identifying the criteria it will take into account, or failing that to publish details of enforcement actions brought against individual violators.

For more on the “prescribed by law” test, see my paper here. To quote from the abstract:

[A]dministrative decision-makers who fail to confine, structure and check their discretion by adopting “soft law” instruments, such as publicly available guidelines, risk seeing their decisions struck down as unreasonable by reviewing courts. And if decisions are unreasonable, they cannot be “prescribed by law” within the meaning of section 1 of the Charter. Requiring the adoption of “soft law” instruments gives effect to the formal and substantive senses of the phrase “prescribed by law” by improving the accessibility and precision of administrative discretion; enhances its accountability function by allowing individuals to identify the source of rights-infringing official action and providing a focal point for debate; and hands an additional shield to the individual with which to fend off infringements of the Charter.

This content has been updated on July 8, 2014 at 19:31.