Canadian Law Professor Proposes Recipe for Curtailing Spam

Professor Michael A. Geist, a law professor at the University of Ottawa specializing in Internet and e-commerce law and serving as technology counsel to Osler, Hoskin & Harcourt LLP, contacted Declan McCullagh's Internet resource site Politech about spam, and passed along his research addressing the problem of spam from the point of view of Canadian law. Geist's "Law Bytes" column in the Toronto Star highlighted a new study he conducted on "the state of anti-spam legislative measures in Canada," he told McCullagh.

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Michael A. Geist

"Despite absence of specific anti-spam legislation, the paper argues that when viewed in combination, the current Canadian legal options allow for enforcement actions against virtually all of the conduct identified by most global anti-spam legislation, including the use of deceptive headers, failure to honor opt-out requests, limitations on e-mail address harvesting and sales, and the unauthorized use of computing equipment to send spam."

Geist's research proposes that the solution to curtailing spam rests not with creating more or different legislation, but with employing "aggressive enforcement initiatives by the responsible government departments" already working for Canada.

The study, "Untouchable?: A Canadian Perspective on the Anti-Spam Battle," quotes alarming statistics – most of them U.S.-generated – about the toll of spam. "[The] spam epidemic reportedly brings $250 million in income to spamming organizations, yet costs society as much as $87 billion in lost productivity and associated expenses," Geist relates.

Geist notes in his Toronto Star column that "The United States, European Union, South Korea, Australia, and Japan have taken legislative steps to combat spam. Their statutes feature a wide range of anti-spam measures including labeling requirements (such as 'ADV' tags in the subject lines of e-mails), prohibitions on deceptive practices such as false header information, bans on e-mail address harvesting, the creation of do-not-spam lists, penalties for commissioning spam, and immunity for Internet service providers that take good faith steps to stop spamming organizations.

Here's where Canada's pre-existing legislation might provide a shortcut to protecting its denizens against spam without creating more laws: "Current Canadian law features similar powers as those found in anti-spam legislation elsewhere. Noteworthy Canadian laws include private sector privacy legislation, deceptive practices legislation administered by the Competition Bureau's Fair Business Practices Branch, the application of the Criminal Code, and enforcement of section 41 of the Telecommunications Act."

For more information on Mr. Geist's findings, follow the links above.

Mr. Geist was kind enough to answer a few questions for this exclusive interview. Do you think the spam-specific legislation brought forth in the U.S. was avoidable?

Michael Geist: Not after California passed very strong anti-spam legislation. That law pushed many who had opposed spam legislation to support a weaker federal standard.

AO: Did we already have anything in place to compare with Canadian provisions that might stem spam without further legislation?

MG: There were certainly some provisions in the U.S. – the FTC has brought dozens of actions against spammers using the FTC act. The big difference would be the absence of privacy legislation.

AO: Do you think the U.S. legislation could possibly be effective?

MG: Only if there is a serious attempt to enforce the law – the FBI has suggested that it plans to increase its enforcement activity, which is a positive sign.

AO: Do you think there's any legislation that could curtail the spam epidemic, and what would it look like?

MG: There's no silver bullet. We need to aggressively use existing laws in many countries before turning to yet more anti-spam legislation.