#CyberFLASH: CASL Enforcement Decision — Sending Messages Without Consent

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On October 26, 2016, the Canadian Radio-television and Tele-communications Commission issued a Compliance and Enforcement Decision finding that Blackstone Learning Corp. violated Canada’s anti-spam legislation (commonly known as “CASL”) by sending commercial electronic messages without consent and imposing a $50,000 penalty.

CASL

CASL creates a comprehensive regime of offences, enforcement mechanisms and potentially severe penalties (including personal liability for employers, corporate directors and officers) designed to prohibit unsolicited or misleading commercial electronic messages (“CEMs”), the unauthorized commercial installation and use of computer programs on another person’s computer system and other forms of online fraud (such as identity theft and phishing).

For most organizations, the key parts of CASL are the rules for CEMs. Subject to limited exceptions, CASL creates an opt-in regime that prohibits the sending of a CEM unless the recipient has given consent (express or implied in limited circumstances) to receive the CEM and the CEM complies with prescribed formalities (including disclosure of contact information and an effective and promptly implemented unsubscribe mechanism) and is not misleading. An organization that sends a CEM has the onus of proving that the recipient gave express or implied consent to receive the CEM.

Violation of CASL’s CEM rules can result in severe administrative monetary penalties (up to $1 million per violation for individuals and up to $10 million per violation for organizations), civil liability through a private right of action (commencing July 1, 2017) and vicarious liability on employers, directors and officers who are unable to establish that they exercised due diligence to prevent the CASL violations. CASL gives the Canadian Radio-television and Tele-communications Commission (“CRTC”) regulatory and enforcement authority regarding CEMs and other matters.

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#CyberFLASH: CRTC, Can Con policy are overdue for an overhaul

crtc_logoOttawa – A new paper from the Macdonald-Laurier Institute is laying out a blueprint for how to turn the CRTC, the regulator of broadcasting and telecommunications, from a counterproductive drag on progress to a leading influence in making Canada a digital innovator.

The CRTC was created to manage the “orderly development” of Canada’s broadcasting and telecommunications sectors in the “public interest”. But it still remains largely the same as when it was created in 1968 – the year Justin Trudeau’s father was elected prime minister.

“The explosion of new technologies, market structures, and consumer expectations has disrupted this quaint vision for the CRTC”, say the report’s authors, MLI Munk Senior Fellow Sean Speer and Len Katz, a telecommunications consultant and former Vice- Chairman-Telecommunications at the CRTC .

“Its capacity to manage the “orderly development” of Canada’s communications sectors has been undermined by market dynamism and technology enabled disorder”.

The paper, written by MLI Munk Senior Fellow Sean Speer and telecommunications consultant and former Vice- Chairman-Telecommunications at the CRTC Len Katz, points out that we now have more than 28 million wireless subscribers and 93 percent of Canadians are covered by the highest network access speed. Two-thirds of Canadian adults now own a smartphone and roughly half own a tablet. The average Canadian spends roughly 45 hours per month accessing the Internet – the highest usage rate in the world – and rising.

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#CyberFLASH: Behind the Scenes of the Digital CanCon Consultation: Geist

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Canadian Heritage Minister Melanie Joly launched her review of CanCon rules last spring by stating that “everything is on the table.” The pre-consultation revealed a sharp divide between industry and the public with industry stakeholders emphasizing more public and government support and the public focusing on efforts to promote Canadian content.

This week I obtained government documents under the Access to Information Act that provide some interesting insights in the behind-the-scenes process that brought a major government consultation from concept to launch in a matter of weeks. The roughly thousand pages show Canadian Heritage officials worked long hours to develop timelines, consultation documents, communications plans, and advisory committees. Given the time constraints, it is an impressive effort.

The documents also highlight internal thinking on several major issues, including Netflix regulation, the CRTC’s Let’s Talk TV rulings, and copyright. On the Netflix tax, the documents indicate that officials downplayed the possibility of legislative reforms for broadcasting before the consultation was even launched. Part of the department’s communication plan includes the following Q&A on Netflix regulation:

Some have been calling for changes to the Broadcasting Act – including to require OTT players like Netflix to be regulated by the CRTC. Do you see moving in that direction as a potential result of these consultations?

a. In my view, legislation is not the starting point. It’s one tool that governments have used to support cultural policy objectives.

b. The starting point is ensuring that we strengthen the creation, discovery and export of Canadian content in a digital world.

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#CyberFLASH: Canadian Battle over “Zero Rating” Places Net Neutrality Safeguards at Risk

03748212-700x500Net neutrality emerged as a top Internet policy issue over 10 years ago as some Internet service providers openly discussed creating a two-tier system with a fast lane for websites and applications willing to pay additional fees and a slow lane for everyone else. The companies maintained that consumers would benefit from the two-tier approach by gaining faster access to premium content.

Internet users and emerging technology companies banded together to oppose the approach, arguing that all traffic should be treated in an equal manner regardless of content, source, or destination. They noted that the two-tier approach could lead to unfair competition and an inability for start-up companies to challenge established players.

My weekly technology law column (Toronto Star version, homepage version) notes that Internet users won the policy battle and years later net neutrality rules can be found worldwide. Indeed, the importance of an “open Internet” was recently affirmed by Navdeep Bains, Canada’s Minister of Innovation, Science and Development, who told an international conference that the economy depends upon it.

The Canadian Radio-television and Telecommunications Commission (CRTC) established its policy response in 2009 with the Internet traffic management practices. The rules restrict content blocking or slowdowns and require ISPs to disclose how they manage their networks.

The net neutrality debate has shifted in recent years to the issue of “zero rating” or “differential pricing”, references to network providers exempting certain content from data charges. While the traffic management practice has flipped from charging extra for content to offering access to content without data charges, the fundamental concerns are largely the same.

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#CyberFLASH: CRTC joins global anti-spam drive

crtc_logoCanada’s telecom regulator is teaming up with enforcement agencies outside the country to beef up the fight against electronic spam.

The Canadian Radio-television and Telecommunications Commission says it has signed an agreement with 10 agencies in eight countries, with the goal of better enforcing anti-spam laws.

Canada’s own law, which came into effect nearly two years ago, has resulted in a significant drop in digital spam originating in Canada, according to email marketing firm Cyberimpact.

And while the law has resulted in some big fines, including one last year for $1.1 million against Quebec-based Compu-Finder, legal experts have questioned whether Canadian authorities might have difficulty enforcing the law against companies in foreign jurisdictions.

But CRTC chairman Jean-Pierre Blais says the agreement sends a strong message that the international enforcement community intends to stop spammers from sending annoying — and sometimes dangerous — electronic spam.

Signatories include Canada’s privacy commissioner, the U.S. Federal Trade Commission and Federal Communications Commission, communications and consumer authorities in Australia, the Netherlands and the United Kingdom, and agencies in Korea, New Zealand and South Africa.

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#CyberFLASH: Canadians may soon compete on Jeopardy

WASHINGTON, DC - APRIL 21: Alex Trebek speaks during a rehearsal before a taping of  Jeopardy! Power Players Week at DAR Constitution Hall on April 21, 2012 in Washington, DC. (Photo by Kris Connor/Getty Images)

OTTAWA (CP) — Game show host Alex Trebek says it looks as if Canadians will soon be able to apply to compete on Jeopardy again.

Trebek, who has presided over the quiz show for more than 30 years, is in Ottawa to receive the key to the city and met Prime Minister Justin Trudeau briefly.

The prime minister has praised Trebek’s financial contributions to the University of Ottawa.

The two also discussed a return of Canadians to Trebek’s popular show.

Changes in Canada’s digital privacy laws last year caused problems over Internet applications, but Trebek says they are being ironed out.

Trudeau suggested the host had worked out a fix for the problem.

“I’m sure you’ve been grilled on that,” Trudeau said.

“Well yes, because everyone blames us and I keep turning it around and saying …”

Trudeau interrupted: “You’re blaming me instead.”

“Well not quite,” Trebek said, adding that he has been told a solution is in the works.

The show’s website says it cannot accept registration information from Canadians but “we are currently evaluating this matter.”

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#CyberFLASH: How new online copyright infringement laws are affecting Canadians one year later

201310281614240l4j1t1yodou1gmqihww4xc3fAt TekSavvy Solutions Inc.’s office in the small southwestern Ontario town of Chatham, there’s a woman who comes to work each morning to help movie studios accuse the company’s customers of breaking the law. Every day, the employee has to process about 5,000 copyright infringement notices forwarded to TekSavvy by studios and other copyright holders that monitor the Internet for piracy.

She runs them through a software system, which the Internet service provider had to custom build, to ensure the text of the notice complies with the law and matches the IP address with the right customer. The software system only automates some of this task, so she still has to review each notice.

The whole process has become an expensive headache for a small company with 250,000 customers and about 500 employees, said Bram Abramson, TekSavvy’s chief legal and regulatory officer. The software system alone cost about $500,000 to set up, and the company has spent an additional $100,000 over the course of the past year to keep up with the notices.

“It’s a source of much frustration for us,” Abramson said. “It’s a whole system that had to be built. It’s not like you can buy that off the shelf.”

Accusing your customers of theft is also not great for business.

But under a law popularly known as notice-and-notice that went into effect in January 2015, ISPs such as TekSavvy are required to forward copyright infringement alerts to customers suspected of illegally downloading copyrighted material like movies, television shows and music.

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#CyberFLASH: The Trouble with the TPP, Day 20: Unenforceable Net Neutrality Rules

15109096143_418befce5e_k-780x350One of President Barack Obama’s selling points for the TPP has been claims that it helps preserve “an open and free Internet.” The references to an open and free Internet, which is closely linked to net neutrality, may strike a chord with those concerned with digital issues. However, the Trouble with the TPP is that a close examination of the text and a comparison with existing net neutrality rules in many TPP countries reveals that it doesn’t advance the issue. In fact, the standards are so weak and unenforceable that at least half of the TPP countries already far exceed them.

Article 14.10 of the TPP provides:

Subject to applicable policies, laws and regulations, the Parties recognise the benefits of consumers in their territories having the ability to:
(a) access and use services and applications of a consumer’s choice available on the Internet, subject to reasonable network management;
(b) connect the end-user devices of a consumer’s choice to the Internet, provided that such devices do not harm the network; and
(c) access information on the network management practices of a consumer’s Internet access service supplier.

As a starting point, this is not mandated obligation. The TPP countries merely “recognize” the benefits of some net neutrality provisions. For those countries without net neutrality rules, there is no requirement to implement anything in order to comply with the agreement. In fact, if there was any doubt about the lack of enforceability, the entire provision is prefaced by the reference to “subject to applicable policies, and regulations.” In other words, the provision doesn’t advance anything for countries without net neutrality provisions.

For those with net neutrality provisions, the TPP typically falls well short of what they already have in place. In Canada, the CRTC’s Internet Traffic Management Practices go far beyond the TPP, offering more comprehensive coverage, a complaints mechanism, and enforceable obligations overseen by the CRTC. Many other TPP countries also have stronger net neutrality rules:

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