Most people would agree that spam e-mail is a problem, and there is increasing domestic and international pressure on Canada to enact targeted anti-spam legislation.  However, even in countries that have adopted such legislation, it seems clear that a statutory regime is not a complete answer to stem the growing flow of spam.

What is spam and why is it an issue?

“Spam” is the Internet slang term used to define the practice of sending massive amounts of unsolicited e-mails for commercial or fraudulent purposes.  Industry experts have reported that in 2006, spam accounted for 86.2 per cent of the total number of e-mails sent globally, with 63.4 per cent of all spam coming from new and unknown sources.

In a world increasingly reliant upon electronic networks and instantaneous communications, e-mail is a convenient and cost-effective form of personal and professional communication. 

However, the growing volume of spam is now clogging e-mail inboxes and, in a few short years, spam has gone from being a mild irritant to becoming a significant business issue.  It undermines the reliability of e-mail networks for business users and threatens consumer confidence in the e-commerce marketplace.  As a result, Internet and e-commerce businesses are finding it difficult to attract investment, create jobs and enhance business productivity.  These problems have also had an impact on other businesses, as computer networks strain and employee productivity falters.

How does Canada deal with spam?

Canada’s Privacy Commissioner recently reported that Canada has the dubious distinction of being the only G-8 country without anti-spam legislation and has been cited internationally as the sixth-largest world source of spam.

But Canada has not ignored this problem altogether.  In 2004, the federal government established the Task Force on Spam in an attempt to determine how best to curtail unsolicited commercial e-mail.  Yet, despite the recommendations in the task force’s final report, entitled Stopping Spam:  Creating a Stronger, Safer Internet, there has been no substantive legislative change to combat the spam problem (indeed, the federal government has not implemented any of the recommendations contained in the report).

Without targeted anti-spam legislation, Canadians must rely on an often ineffective patchwork of legislative provisions to address the spam problem, including the following federal statutes:
1. The Personal Information Protection and Electronic Documents Act, which covers online privacy in detail, and contains many provisions relevant to e-mail marketing and generally treats an e-mail address as protected personal information;
2. The Competition Act, which prohibits deceptive and misleading representations; and
3. The Criminal Code, which covers fraudulent or false content and prevents unauthorized use of computer services.

Reliance on these federal statutes as the only weapon to combat spam is problematic for two reasons.  First, while most of the products and services promoted in electronic commercial solicitations might be unwanted and are often offensive to many Internet users, they do not usually involve the offering of illegal products or services, or the making of what might be considered, in law, misleading claims.  Thus, unless it falls within the ambit of the three statutes noted above, spam that is simply offensive or annoying cannot be challenged. Second, where these laws do offer protections or methods of indirectly addressing the spam issue, there is a general reluctance to enforce them.

Spam outside of Canada

Other countries have taken up the fight, but interestingly even jurisdictions with anti-spam legislation in force continue to top the list of the worst countries for the origin of spam.  For example, the spam tracking website Spamhaus.org reports that on March 21 the top five worst spam origin countries were the United States, China, Russia, the United Kingdom and Japan.  Of these five, Russia is the only country without anti-spam legislation.

In 2003, the United States enacted the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, more commonly known as the “CAN-SPAM Act of 2003”, in an attempt to control the proliferation of spam in that country.  Although questions have been raised about the effectiveness of this law at reducing spam, there seems to be a consensus that it is an essential component in a larger anti-spam strategy.

Conclusion

Given that the amount of spam plaguing our inboxes shows no sign of abating and experts are predicting that spam will increase in both volume and maliciousness in the coming years, Canada must act to ensure that e-mail and the Internet remain viable tools for legitimate business and personal communications.  Although by no means the silver bullet, one key step in this process is for the federal government to enact anti-spam legislation that contains effective enforcement mechanisms.  At a minimum, such legislation would send a signal internationally that Canada will fight back against the spammers.

However, given the multilayered nature of the spam problem, legislation alone will not curtail the flow of spam originating within our borders. Both government and industry stakeholders, including Internet service providers, businesses and legitimate marketers, must work to develop a comprehensive range of measures and commitments, including a focus on consumer education and the continuing development of effective anti-spam technology.

Brock Smith is a partner in the Technology and Intellectual Property Practice Group at Clark Wilson LLP in Vancouver, where he provides strategic legal advice to information technology and emerging growth companies of all sizes.  Shauna Towriss is an associate in the business law department at Clark Wilson LLP, where she provides legal advice on corporate and commercial law matters.