Hon. Dan McTeague (Pickering—Scarborough East, Lib.)
Mr. Speaker, I am honoured to speak to this bill.
The impetus for this bill dates back to 2003, when I introduced the first bill to combat emails containing commercial electronic information.
The fact that there have been changes of government and four Parliaments since then is obviously a problem. But the situation continues to get worse, and it cannot be minimized by arguments that we will hurt industry if we pass a bill to protect consumers and ensure that industry can function. We recognize the importance of sending commercial information through electronic media.
I reflect on the several years and how long it may take for a bill to make its way through Parliament and to address an issue, which I think for most Canadians is obvious. We have heard my good colleague from Nipissing—Timiskaming talking about the fact that many parts of his riding in northern Ontario and places outside of the beaten track of larger urban areas still are without significant access to the Internet, even though we all recognize in this Parliament, and Canadians recognize, the importance of commercial information through electronic media.
I was here 17 years ago as a member of Parliament and recall the then minister of industry having a BlackBerry. It was a new, revolutionary idea, but of course it had not really taken off at that time. One wonders how we could function as a nation today, recognizing the great advances that have been made in many respects with Canadian technology, Canadian prowess and Canadian utilization, were it not for these kinds of developments, which have caught on in Canada and around the world. It seems to me that we would certainly be somewhere well behind the rest of the world.
Therefore the legislation, albeit rather late, is timely in the sense that it does address a domestic problem, but as I indicated in my question for the previous member from our party, who sits on the industry committee and has sat on the industry committee, I am most concerned about the ability to reflect upon what this legislation will do as much as what it will not do.
I do not want to create false expectations for the Canadian public that suddenly tomorrow, or when the legislation is passed and accepted in the other house, there will be in fact a cessation of spam, malware, spyware, botnets and other programs that are added on, nor will this stop those who exercise beyond our jurisdiction, beyond our geography, from continuing to engage in something that is now more than just a nuisance, as it was in the early 2000s when I introduced the first spam bill.
It is important for us to recognize the work that has been done over the years.
I also want to give specific recommendations and a commendation, not just to the committee that passed this very recently, but also of course to my own party, which in 2004 and 2005, in order to address this issue, set up a task force, the Liberal task force on spam. Of course, it recommended that we come forward as quickly as possible with legislation that would prohibit the sending of unintended, unwarranted, unsolicited emails and information without the prior consent of recipients.
At the time it also recommended the prohibition of the use of false and misleading statements that suppress, ignore, set aside, or disguise the true intent of the email, not to mention of course its origins. This was a very serious point, where people would open up information and it was in fact nothing short of a commercial nuisance disguised in a fraud.
The Liberal task force on electronic emails also called for the prohibition of the installation of unauthorized programs. My colleague who spoke previously talked at great length about what those programs look like, the kind of information that is often inserted, unbeknownst to the recipient, on his or her computer. It also, of course, talked about the prohibition of the unauthorized collection of personal information or email addresses, the aggregation of which would be to see constant emails sent to us ad infinitum.
These were very important recommendations that were made and they formed literally the basis of what the government has now brought forward and with which we agree. We agree with it because it also does take into consideration the balancing of ensuring that privacy questions are also paramount. The committee took great pains to ensure that personal information and the laws that support PIPEDA are in fact in this piece of legislation, and that it reflect very carefully, endorse, and inform Canadians as to just how the legislation proposes not only to ensure the optimal protection of privacy, but also the steps in terms of coordination of how the legislation is to be enforced.
I go back to the Liberal Party task force recommendation because it is very telling.
As Bill C-28 looks to be implemented, it provides fines for violations of any one of these particular acts of up to $1 million for individuals and $10 million for business. It also establishes rules for warrants of information during investigations.
It is extremely important to understand that there has to be a coordinated and collaborative attempt to ensure that there are rules of engagement in terms of enforcement. We cannot just walk in and seize someone's computer.
The legislation, through the Department of Justice I presume, has met a number of very stiff and significant tests: privacy, the way in which the legislation is enforced; and, as the bill calls for the injunctions of spam on activity while under investigation, it does provide the ability to force a cease and desist.
Bill C-28, as we know, establishes something new, but it is something that was also discussed some years ago, and that is the private right of action. We have seen this in other areas where, if enforcement is not adequate and an individual or business feels there is something where they have been targeted, they have that as a recourse.
I think that is fundamentally important to distinguishing this bill from its previous characterizations and incarnations. It gives a significant step forward for individuals to take up these matters when there may be the possibility of a lack of interest as a result of a number of circumstances.
Of course, it also allows those individuals who have been aggrieved, who have been the target, whose businesses or affairs have been trampled on, affected, or impeded, to seek damages from those who are involved in the perpetration of spam. I think that is important.
We all understand the significance and importance of this kind of legislation. What cannot be misunderstood and certainly cannot be gainsaid is the significance and importance of ensuring that we have legislation that does not have unintended consequences. That is why legislation like this must, I emphasize, be reviewed periodically and more frequently. As technology evolves, so does the ability to make legislation that is relevant.
While we have constructed a piece of legislation that would have been good in 2003 with some modifications here and there, it may not be relevant to the overall concern that I think consumers have, and that is the prospect that they are going to continue to get unwarranted and unsolicited spam emanating from jurisdictions outside of Canada.
As my good colleague from Nipissing—Timiskaming has emphasized, and it cannot go unnoticed, we have to do a better job at working with other nations. We must ensure that individuals do not use jurisdictions with the least amount of enforcement in order to continue to harass, sully and act with relative impunity in assaulting and taking up so much space on the Internet.
It is one thing for northern and rural parts of this country to still be on dial-up or DSL. It is quite another thing to have 60% to 80% of all electronic traffic in this country originating from spammers. Quite apart from the sinister side of what that means in terms of malware, spyware, botnet, and as that has been described by my previous colleague in considerable detail I will not go over it again, it seems to me we have to ensure that the legislation is pragmatic and can evolve with time.
It is not clear to me that this legislation will do that. While I support it and believe it is a step in the right direction, let us understand that this is really only a first step. This is a first step towards understanding that Parliament has to be continuously vigilant in ensuring legislation meets the expectations of an economy that more increasingly depends, in this digital age, on the ability to receive and transmit information, and to use the Internet and electronic means not only to convey private information but indeed as a means by which our economic infrastructure becomes more increasingly dependent.
This brings me to the question of enforcement. I understand that there are other significant pieces of legislation that we have before us now in this House. There are a number of committees embarking on the issue of copyright. However, this legislation will require constant review by those in business, by those in the know, to recognize areas where the legislation should be modified from time to time. It will also be incumbent on future industry committees every year or so to have a periodic look to see where we are going, where the bill has had an impact, what it is failing and what it is addressing.
One of the areas that I think we have not discussed sufficiently about this bill, but which we are going to require, will be the unintended consequences this would have on domestic business.
Here I talk of legislation that is meant to do the right thing for business and the right thing for consumers.
At the same time, we have to recognize the impact it will have on small and medium-sized businesses that, for some reason, are unaware of this bill's real impact and of the fact that the bill provides for penalties. As well, these businesses may not be aware that some transactions they conduct, not for fraudulent reasons but for legitimate business reasons, may violate the legislation.
I am worried about the sudden impact it will have on our small and medium-sized businesses. This is not something this bill is merely silent on. We will have to use the federal government's communications resources to ensure that businesses do not run afoul of the law because they are unaware that, in the future, it will prohibit them from sending messages and notices to promote their business.
Let us be very clear on this point. We want to make sure that small business, as well, is aware of the impact of this legislation. It is great that we have finally come to the point where we have legislation that actually has a very positive impact on assuring Canadians that we are finally getting on the ball to address spam. However, we certainly do not want to negatively or adversely impact those who, through no fault of their own, do not have a real understanding of this legislation, business in particular.
People may be out there actually trying to make a living as opposed to hearing what we are saying here in Parliament, but those individuals should be contacted. Organizations that work with small and medium-sized enterprises in this country should at least be aware of what is in store should the law be broken unintentionally.
There has to be some deference given. We understand there is a civil sanction. This is where the hon. member for Nipissing—Timiskaming got it right. Criminalizing may have the horrific outcome of putting someone in a very difficult position. People who engage in advertising and unintentionally send electronic emails to prospective or perhaps even existing clients without the clients' consent could find themselves afoul of the law. It is a very fine balancing act that will not be resolved by criminalization.
Quite frankly, that would be the worst road we could go down and we should be very careful. If we do not have in place a strong communication strategy to ensure small business has the opportunity, we may hurt the very people we are trying to protect.
I look forward to hearing comments in the next few days as to where this legislation will go. It is a hybrid of what Parliament can do if parties decide to set aside their partisan differences and focus on some very important pieces of legislation.
It also requires us now to take this legislation, should it be passed in the next several weeks, to other committees. I would hope the trade committee of the House also takes on the responsibility of ensuring that there is co-operation and coordination between other jurisdictions. We have talked a bit about those, but if we receive spam originating from, say, Sao Tome, a very famous place off the continent of Africa that tends to be a channel or switch for a lot of information, we may not have the jurisdiction or wherewithal to stop it, prevent it or provide assurances to Canadians that they will not continue to be harassed.
It seems to me that when this bill was first introduced some years ago, there were individuals as close as Detroit. There was one individual I will not mention who was responsible for a significant amount of the junk we used to receive in our emails. It took us a considerable amount of time to work with our American friends to shut down the practice. The practice was not just about harassment. The practice itself was also about mismanaging and directing computers to open up programs and direct us to other addresses or simply to shut down or break down our computers that were otherwise intended for very innocent reasons.
It is also important to understand that the legislation itself has as its intentions all of the elements that have been brought forward to us in the more recent times, but we must be careful that we do not involve a debate that suggests this bill will be the be all and end all. I know some believe that Parliament is capable of doing far more and that this legislation may be the silver bullet. However, it is not. We have to be very realistic about what we believe this would accomplish.
My own sense is that, if the House of Commons were to be properly disposed, it would also want to allocate within a period of time an understanding of how much money will be spent on enforcement and what agencies would be responsible for collecting information on an ongoing basis to determine whether this legislation has in fact been properly impacted. We need appropriate benchmarks over the next year or so to demonstrate what the effectiveness and efficiency of this bill is.
I am talking about down the road. We have got to one point, but we have a long road ahead of us, and this is not going to end anytime soon. Canadians will continue to look upon parliamentarians and government to be able to correct problems they cannot themselves fix.
The last thing, as I have suggested, is that we do not want legislation that leads us in the direction of creating more problems than we are resolving. That is of course a real prospect and a concern that I have in looking at the legislation, because the legislation itself does not provide all of the guarantees.
I have looked at other concerns that have been raised in Bill C-28. There are some very hard penalties that come with this piece of legislation. It will be interesting to see whether those penalties in fact can be borne by those who unintentionally make an error. I think there has to be some kind of judicial discretion given in these circumstances so we are not looking to make a particular example of an individual.
That brings us to legislation as it relates to the do-not-call list. With that list, in many respects some are walking away with a literal slap on the wrist or, worse, being given an opportunity to send money to a particular academic organization in order to sort of make amends.
I think we have to provide an effective balance, a balance that takes into consideration the seriousness of the damage done to others, while giving people a private right of action but not going to the point where we are simply trying to make one example as a means of scaring off everyone else.
The law must be applied fairly, consistently and evenly, and above all it must be applied pragmatically in order to ensure that we are aware and can stay on top of all the new nuanced ways in which people will try to get around the legislation to harm our economy and, above all, really bother our consumers.
Topic: Government Orders
Subtopic: Fighting Internet and Wireless Spam Act