CLBR Seg 1: David Elder Explains Canada’s New Spam Law

A LONG-TIME COMING, CANADA’S SPAM LAW FINALLY COMES INTO FORCE

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Canada’s new anti-spam law was passed in  December 2010 and, following a Governor in Council order, it will enter into force on July 1, 2014. Once the law is in force, it will help to protect  Canadians while ensuring that businesses can continue to compete in the global marketplace. On January 15, 2015,sections of the Act related to the unsolicited installation of computer programs or software come into force.

When the new law is in force, it will generally prohibit the:

  • sending of commercial electronic messages without the recipient’s consent (permission), including messages to email addresses and social networking accounts, and text messages sent to a cell phone;
  • alteration of transmission data in an electronic message which results in the message being delivered to a different destination without express consent;
  • installation of computer programs without the express consent of the owner of the computer system or its agent, such as an authorized employee;
  • use of false or misleading representations online in the promotion of products or services;
  • collection of personal information through accessing a computer system in violation of federal law (e.g. the Criminal Code of Canada); and
  • collection of electronic addresses by the use of computer programs or the use of such addresses, without permission (address harvesting).

There are three government agencies responsible for enforcement of the law. When the new law is in force, it will allow:

  • The Canadian Radio-television and Telecommunications Commission (CRTC) to issue administrative monetary penalties for violations of the new anti-spam law.
  • The Competition Bureau to seek administrative monetary penalties or criminal sanctions under theCompetition Act.
  • The Office of the Privacy Commissioner to exercise new powers under an amended Personal Information Protection and Electronic Documents Act.

It will also allow all three agencies to share information with the government of a foreign state if the information is relevant to an investigation or proceeding in respect of a contravention of the laws of a foreign state that is substantially similar to the conduct prohibited by this Canadian law.

The law will also allow individuals and organizations who are affected by an act or omission that is in contravention of the law to bring a private right of action in court against individuals and organizations whom they allege have violated the law. Once into force, the private right of action will allow an applicant to seek actual and statutory damages. Statutory damages may not be pursued if the person or organization against whom the contravention is alleged has entered into an undertaking or has been served with a Notice of Violation.

DAVID ELDER

 

David Elder practises communications, competition and privacy law in the Ottawa office, where he is Chair of the Communications group and a member of the Competition and Foreign Investment, Privacy & Data Protection, Government Relations, Regulatory and Public Policy practice groups. He also serves as the firm’s Chief Privacy Officer. He has over 20 years’ experience gained in private practice, government and corporate settings. David was formerly Vice President, Regulatory Law with Bell Canada, where he also served as Bell Privacy Ombudsman, the equivalent of Chief Privacy Officer. He has also served as Legal Counsel to the CRTC.David is one of Canada’s leading practitioners in the area of unsolicited telecommunications. He has many years of experience in this area, assisting, during his tenure as counsel with the CRTC, with the development of some of the current rules, and in subsequent roles, arguing some of the key cases dealing with the interpretation and application of the Unsolicited Telecommunications Rules. He has advised a range of clients with respect to compliance with these Rules and National Do Not Call List requirements, including representing clients with respect to investigations and enforcement action by the CRTC.David is also recognized as one of the country’s foremost authorities on Canada’s Anti-Spam Legislation (CASL), having been involved in all stages of the development of the new law, including making formal submissions on behalf of a number of clients and having successfully worked to help secure some key amendments to the law and regulations during the legislative process. He has advised many clients with respect to the interpretation and application of the new law, as well as assisting businesses with the development of anti-spam compliance programs. He is in high demand as a speaker on the topic of CASL.David has provided legal and strategic advice with respect to a wide range of broadcasting and telecommunications proceedings, including those relating to licensing, policy matters and competitive disputes. In various written, oral, expedited and dispute resolution proceedings he has advocated on behalf of clients before the CRTC, Industry Canada, the Federal Court of Appeal, the Privacy Commissioner of Canada and several Parliamentary Committees and working groups.

He serves a broad range of clients in the communications industry including broadcasters, broadcasting distributors, Internet content providers, software-as-a-service providers, property developers, government departments and agencies, industry associations and telecommunications service providers employing Internet, wired, wireless and satellite technologies.

With respect to privacy matters, David provides privacy compliance advice to a wide range of Canadian and international businesses, including technology companies, on-line service providers, manufacturers, wholesalers and retailers, conducting both “bricks and mortar” and online activities. He also provides advice with respect to managing data breaches and navigating privacy issues arising in M&A transactions. David serves as Special Digital Privacy Counsel to the Canadian Marketing Association, in which role he advocates and advises on a range of electronic privacy issues, including spam regulation.

David is editor of CanadianCommunicationsLaw.com, Stikeman Elliott’s blog on legal and policy developments relating to communications. He is also a Research Contributor to the “Privacy Interviews with Experts Series” published by Nymity News, an international provider of privacy information, compliance and accountability solutions.

He has been listed and recognized in the following publications:

    • Chambers Global’s The World’s Leading Lawyers for Business 2014, as a recommended lawyer in Telecommunications & Broadcasting, where he is noted as being “extremely knowledgeable, competent and easy to talk to. He is good at breaking down a complicated process in a relatable and understandable way”;
    • The Best Lawyers in Canada 2014, for his Communications Law expertise;
    • The Legal 500 Canada 2014, as a Leading Individual in Technology, Media and Telecoms law;
    • Who’s Who Legal: Canada 2013 as a top-tier practitioner, highly recommended for his expertise in Telecoms and Media; and
  • Legal Media Group’s Guide to the World’s Leading Telecommunications Lawyers 2011.
Professional Activities
David is past Chair of the National Entertainment, Media & Communications Law Section of the Canadian Bar Association and a member of the Steering Committee for the biennial Law Society of Upper Canada / Canadian Bar Association Communications Law and Policy Conference. He is also an active member of the International Committee of the Antitrust Law Section of the American Bar Association. He has been an active member of the Information Technology Association of Canada and the Canadian Wireless Telecommunications Association and is the former chair of the Lawful Access Committee of the Canadian Association of Internet Providers.Community
David is involved in a number of community and charitable endeavours, including the March of Dimes and Plan Canada. He is a Board Member of the Sir Ernest MacMillan Memorial Foundation, a charitable organization that provides financial support to young musicians in the pursuit of their advanced education and career development.
Education
University of Ottawa (LL.B. 1989); York University (B.A. (Hons.) English Lit./Mass Com. 1985).
Background
Immediately prior to joining Stikeman Elliott, David had his own law practice in Ottawa, specializing in communications and privacy law.
Bar Admission
Ontario, 1991

HAPPY CANADA DAY!

 

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