Thank you, Mr. Chair, and committee members for giving me the opportunity to speak to you today.
By way of a brief introduction, my name is Stephanie Provato and I'm an associate lawyer at Buchli Goldstein in Toronto.
My involvement with CASL to date has been evaluating the legislation from a constitutional perspective. CASL has been on my radar since before it came into force. In 2014 my paper challenging the constitutional validity of the legislation was published in The John Marshall Journal of Information Technology & Privacy Law. I think it was the first academic paper to take this up, and it garnered a lot of attention. I have since been serving as an adviser with the Lighten CASL initiative, which aims to put forward recommendations to break down some of the, in our opinion, unclear and onerous aspects of the legislation.
However, I'm here today in my individual capacity because I've been advocating in favour of statutory review of the legislation. I think what the committee is doing is very important, and I believe that reform is necessary.
I'd like to present to the committee the position that CASL unjustifiably restricts the fundamental right to freedom of expression, which is protected by section 2(b) of the Charter of Rights. Consequently, the legislation would not withstand a charter challenge on the basis that it would fail the proportionality element of the section 1 Oakes test, particularly the branches of minimal impairment and proportionate impact and effect.
I have a quick charter crash course for the Oakes test branches to give to you today. Under the minimal impairment branch, a law that impairs a right protected by the charter will be deemed constitutional only if it impairs the charter right as minimally as possible. What is looked at is whether the limit being placed on this right is restricted to no greater an extent than what is necessary for the government to achieve its objective. When looking at the proportionate impact and effect branch, what is considered is whether proportionality exists between the government's objective of the law and the adverse effects of the law.
I'd like to establish right out the gate, which is important in a charter analysis, that the definition of “commercial electronic messages”, CEMs, includes commercial activity, which case law has established falls within the scope of “expression” protected in section 2(b). CEMs qualify as a type of expression that is protected by the charter.
To begin the charter analysis, I want to look at the definitions of “family relationships” and “personal relationships” within CASL. The definition of “family relationships” in the regulations is extremely limited. It includes only individuals related to one another through marriage, common-law partnership, or a legal parent-child relationship. This definition ignores the true reach of who in reality is family. It turns family into strangers. It ends up making completely valid communication between completely acceptable parties illegal. Basically, you can't do something like send an email to a second cousin—who many would consider to be family—offering to sell something like a hand-me-down baby crib. The other thing is that messages sent to relatives who are more than a distant lineal descendant, which is only what the act allows, are unlikely to be the electronic—quote, unquote—“threats” that the legislation was intended to target.
I'll move to the “personal relationship” definition in the act. It focuses on factors such as the frequency of communication, the length of time since the parties communicated, and whether the parties have met in person. This is problematic because it's also very limiting. It shuts out and is naive to the reality of what people consider to be personal relationships, which includes colleagues, friends of friends, people you've been out of touch with, people you connect with online, people you have just met, and acquaintances. All of these could be personal relationships, all in different degrees.
Looking at these two definitions shows the problematic nature of the way CASL dictates who can communicate with one another. Dictating who can communicate isn't an issue if you're talking about restricting communication between malicious spammers and an innocent person. However, that's not all that's happening here. There is a restriction on expression here, because CASL casts the net so wide that it is catching and restricting harmless communication that it doesn't need to and didn't intend to in order to achieve its objective. That can't be said to be proportional to fighting spam.
In effect, it will discourage people from communicating and using electronic means to do so, and it will stunt social networking, especially since penalties for non-compliance are so high. It is difficult to fathom how these effects on expression are justifiably reasonable, minimally impairing, and proportionate to pass a charter challenge.
I want to move to CASL's definition of “existing business relationship” for implied consent. It is also an example of how the legislation can have the unjustified and disproportionate effect of infringing on the freedom of expression, this time on small and medium-sized businesses.
These businesses cannot rely on the existing business relationship exemption because, unlike larger and more established businesses, they don't have existing or ongoing business relationships to leverage. Therefore, in effect, they are being restricted from communicating with and reaching the public. This is putting them at a competitive disadvantage. They are hindered from being able to start up, grow, compete, and participate in the marketplace. It may even hinder their ability to provide better and more customized products and services for their clients, thus reducing innovation.
Additionally, the onerous burdens to comply with CASL, along with the high monetary risk and price to pay for non-compliance, may discourage these businesses from participating in the marketplace at all, or in the way they want to, which ends up silencing their voice and their overall impact in the economy. This negative and hindering effect, both on these businesses and the Canadian economy as a whole, can hardly be seen as minimally impairing, especially since small and medium-sized businesses make up a significant portion of the Canadian economy.
These examples highlight the importance of having intelligible standards when it comes to definitions within CASL. Failure to provide clear notice to the public as to which conduct is the subject of legal restrictions is often raised in charter challenges, and it has been held that restrictive law must provide intelligible standards that delineate the risk zone, allowing for legal guidance and accountability.
At the end of the day, CASL has set out these categories of permitted and acceptable commercial speech, which has a chilling effect of restricting legitimate expression and beneficial commercial speech and reducing the free flow of information and ideas. CASL is a disproportionate response to fighting spam, when its adverse effects are compared to the government's objective. CASL cannot be said to be restricting the freedom of expression as minimally as possible. It restricts expression to a greater extent than what is necessary in order for it to achieve its objective. In a nutshell, CASL is inefficient. This is problematic, because an effective law is an efficient law. Even the name itself isn't efficient: “an act to promote the efficiency and adaptability of the Canadian economy...blah blah blah”. That's my eight minutes right there.
On top of that, a charter infringement is too high a price to pay for the benefit of the law. It is important for the committee to consider the fact that CASL needs to be recalibrated so that it delineates clear standards, both on paper and in practice, because, as of right now, its effects are disproportionate to its objective in a way that cannot be justified to override what is protected in the charter.
Mr. Chairman, thank you to the committee for the invitation to present the Canadian Marketing Association's views on this important review of Canada's anti-spam law.
CMA's membership includes most major financial institutions, major retailers, large technology companies, and of course, many marketing agencies and related suppliers across the country. CMA was a member of the 2004 federal task force on spam, and we have long supported some form of regulation to encourage good electronic messaging practices and to deter spam. Our requirement for email marketing, including proper identification of senders, unsubscribe links and lists, opt-in for sensitive communications, all predated CASL by at least a decade.
CMA commends the government and Minister for listening to stakeholders and recently suspending the private right of action. We believe these hearings are an important opportunity for parliamentarians to review the law to see if it's working as intended.
What effect has CASL had in the marketplace and is it well crafted to promote a positive e-commerce environment for both consumers and businesses? On the positive side, the law has encouraged wider adoption of good marketing practices. Companies are more aware and taking steps to ensure CASL compliance. Some surveys also indicate that many users feel they're getting less spam, although the filters provided by our own organizations and Internet providers do much to protect us from both the dangers and inconvenience of spam.
On the other hand, CASL has had very limited impact on the most damaging forms of spam: botnets, phishing scams, fraudulent product claims, malware, and the like all seem to be as prevalent as ever. Yet most CASL enforcement efforts seem to have been focused on legitimate companies sending messages to customers or prospects.
In addition, certain features of CASL have also created confusion and uncertainty for organizations, a concern compounded by the potential for the enormous penalties resulting from something like a broken unsubscribe link.
These uncertainties have a chilling effect on electronic marketing in Canada. Many businesses are avoiding legitimate email marketing campaigns out of fear of inadvertently running afoul of CASL. This effect is directly counter to CASL's stated objective of promoting the efficiency and adaptability of the Canadian economy.
Scott Smith from the chamber appeared here a couple of weeks back, and he mentioned that the chamber, Canadian Marketing Association, the Retail Council, and some other associations are surveying our members about CASL. Interim results are showing that over 40% of respondents indicate they are doing less electronic marketing since CASL took effect, that over 65% say that CASL has put their competitive edge at risk, and over 80% say that CASL is too complicated and confusing. We will be providing the committee with the complete survey results in another 10 days or so.
CMA has a number of suggestions to improve CASL, which we will capture in more detail in our written brief to the committee, but today I want to focus on six key issues and suggestions.
The first is business to business. CASL has created unnecessary barriers for businesses prospecting for new customers in the B to B environment. These limitations on email prospecting create inefficiencies with businesses resorting to more expensive and time-consuming contact methods. Particularly in the B to B environment, the issue of gaining consent, checking lists, and keeping detailed records becomes an impractical nightmare for organizations dealing with groups of salespeople who daily make any number of one-off communications.
We would suggest that CASL should be amended so it does not apply to B to B messages. This approach would be in line with the telemarketing regulations and the national do not call list.
Subsection 6(6) you've heard about already in some detail. It's created a lot of confusion as to what CASL is intended to cover since the messages described in subsection 6(6) are commonly referred to as transactional service security-type messages. Businesses aren't sure how to comply with that subsection. They are at risk if they don't, and if they do, they are likely to confuse their customers. The solution here is to amend CASL to make it very clear that it doesn't apply to transactional or service messages.
Like many others, CMA has argued that CASL should have used the PIPEDA approach to consent, with express consent required in relation to sensitive matters of communication, and valid implied consent required for most other commercial electronic communication and backed up, forcefully, with the unsubscribe offer on every message.
We hope the committee will consider looking closely at consent, but in the absence of such a fundamental change to the law, it should be noted that the current rules for implied consent are challenging for many organizations. The two-year and six-month rule that was mentioned a moment ago creates a systems and data entry headache for many small and medium-sized organizations. Every customer must be tracked so that a two-year clock starts ticking after their latest transaction.
When the two years expire, the organization loses the implied consent to message that customer, but there's an “unsubscribe” on every message and the consumer can opt out at any time, whether it's at two weeks, two months, 24 months, or 30 months. Why create a cumbersome 24-month rule for organizations? It's rather arbitrary, and it creates a serious data management challenge for organizations. Our solution to this would be to simply remove the unnecessary six-month and two-year definitions in the EBR and, where there's a customer relationship or interaction, permit messages to be sent based on implied consent unless or until the consumer signals otherwise.
We're also concerned about the burden of record-keeping. Some organizations are not even using the exemptions in the law because of the related record-keeping requirements, which are too onerous. You have examples. For example, if you obtain express consent from a customer at a retail counter, the CRTC has suggested that you should have a voice recording as evidence of that. The solution here is that the government, as opposed to the CRTC, should develop regulations indicating what are acceptable records and, we would hope, endorse reasonable, ordinary business records.
On the private right of action, I won't revisit the points of concern, because you've heard about them from many others. We simply propose that the private right of action is unnecessary. There are three regulators enforcing this law. The private right of action should be removed from the law or significantly narrowed so as to eliminate statutory damages and/or restrict its availability to ISPs.
On enforcement and penalties, the CMA considers that to date the penalties imposed under CASL are not proportional to the nature of the violations to which they relate. Massive penalties against legitimate companies that made minor errors while attempting to comply with CASL are creating a chill on legitimate marketing activity.
I'm going to ask David Elder to bring his legal expertise to bear and comment on the CRTC enforcement structure.
Committee, Dan was very kind before this and said he'd pinch his fingers when I'm coming up to eight minutes, so I appreciate that, Dan.
My name is Andrew Schiestel. Thank you for having me.
By way of background, I'm the current president and chair of the London Chamber of Commerce, and president of tbk Creative, which is a web design and digital marketing agency based in London, Ontario with 20 staff members. I'm the founder of Lighten CASL, which is a not-for-profit organization committed to seeing CASL improved to be easier for companies to comply with while still protecting consumers. In 2015, through the London Chamber of Commerce, I was one of the authors of the Canadian Chamber of Commerce policy paper on CASL reform, which was delegate approved at the 2015 Canadian Chamber AGM. I currently serve on the Canadian Chamber of Commerce policy task force on CASL reform, and articles I've written on CASL have appeared in the Financial Post, The Globe and Mail, and The London Free Press.
I don't think anybody is denying that CASL had good intentions in its creation. We need anti-spam legislation that thwarts harassing CEMs, people who ignore unsubscribe requests, malicious spam, and cybersecurity threats. We need strong legislation to stop those malicious actions, but CASL overextended its aim, and it has left our Canadian companies in a situation where it's anti-competitive to comply with when they're competing against foreign companies. It's excessively expensive to comply with as well, and I'll give examples of both.
It's anti-competitive to comply with, so let's take a Canadian retailer for instance. They are going to run a sweepstake, which they will oftentimes do as part of thriving as a business. When they're setting up that page, they need to do a lot of things financially. They need to pay money to set up the page with web design costs. They have to spend money on a prize. They could be giving away a vehicle to a consumer. They spend money on legals. If they're in a certain province, like Quebec, they might register the contest with the proper regulator. There are human resource costs, advertising costs, and the list goes on.
What they'll then do is have an opt-in mechanism, a check box that's unchecked, and in my experience in the digital marketing profession, I find that, give or take, 50% of consumers, when they're entering these types of sweepstakes, will check that box. So then what the business is left with is a situation where they have expressed consent under CASL for the 50%, but then, for the other 50% who don't check the box, they don't have expressed consent, but they also don't have implied consent because the provisions of applied consent under CASL are too narrow. But that would be kind of a practical situation where consent may be implied, since the consumer gave the business their contact information in the first place.
All that might sound fine if Canada were in a vacuum, but we're not. We compete against companies around the world. In the same situation in the U.S., a retailer, a competitor to our Canadian company, is running a sweepstake. Under the CAN-SPAM Act, 100% of the leads that they get in they can send to them what CAN-SPAM calls commercial electronic mail messages, which are essentially the same thing as a CEM. When you break that down, a Canadian company in that situation can send CEMs to 50% of the leads they get in, and the U.S. company can send to 100% of the leads they get. The consumer is always protected because they can unsubscribe at any time. That's one of the instances that puts our companies at a competitive disadvantage.
Number two is that the act is excessively expensive for companies to comply with. I'm going to bring up—and this was brought up by Wally, with the CMA—the two-year and six-month rules. I think Stephanie also brought this up earlier. I'll give a real, pragmatic example of how a company can go about implementing this, because I've worked with companies who are grappling with this situation.
If you're a company, and you have a lead coming into your website—say it's a home renovation company—under CASL, you have two years from the date of last purchase and six months from the date of inquiry if the consumer doesn't provide express consent. Here's where it gets tricky. You need to spend money on a software solution that will know to purge that user after six months from the date of that inquiry. If the consumer purchases a product, you have to reset the timeline to purge them in your system two years from the date of that purchase. If they purchase again, your software solution has to reset it again. If they provide express consent during that two-year period, then you change the label, and now it's express consent. If they buy another product, it has to have the intelligence not to reset as two years, though, because they provided express consent. Is anybody confused yet?
That's one of the fundamental issues with CASL. The real cost of that is minimum five figures, and definitely six figures in a lot of instances, to build and maintain software to do that. You have to integrate it into your CRM or ERP, communicate through a bridge with your email marketing software, and vice versa. It has to go back and update accordingly. It's a big software project.
Take that one instance and scale it out now to the approximately 1.17 million companies in Canada, and you're looking at a very problematic situation for our economy and our Canadian businesses.
On September 26 the INDU committee had CRTC in and the conversation kept coming up about more education. Businesses don't need more education on spam. CRTC has probably done a very good job on the balance of things with education. I think businesses, on the balance of things, are very capable people. What we need is legislation that's improved to be easier for businesses to comply with while still protecting consumers. I think fundamentally it's an issue with the act itself. That's why we're still doing all this training after three years.
Also, what I've just said above isn't theoretical. It's actually happening every day in our businesses. I'm going to give two examples.
Earlier this year I spoke with a financial services company with 600 employees based in southwestern Ontario. They sell RRSPs, mortgages, bank account services, etc. I chatted with a vice-president and a marketing manager there. They told me that when somebody inquires on their website, they do not send out any group CEMs to that person even though that consumer provided them their email. They said that they do not want to take the risk of violating CASL with the six-month rule so they would rather not send out group CEMs at all in that instance. But this is a situation where the consumer has actually provided this company their information in the context of receiving services down the road. Again, if Canada were in a vacuum, that would be fine, but they compete against fintech companies all over the world that are emailing Canadians all the time ignoring CASL, or not even aware of CASL.
As a second example, earlier this year I spoke with a software company. They have 100 employees, and they sell globally. I spoke with the director of marketing. She told me they went through a recent web design project where they had to build a form for users to contact them from around the world and they had a decision to make. With option A they needed to have a form that would be dynamic, so if a Canadian put in their information, it would switch the information so that it complied with more stringent consent requirements under CASL. With option B the form would be static so it's universal, but they won't send CEMs to Canadians to fill out the form. They'll only use the phone. Guess what option they chose? Option B. They chose to have it static and they won't send CEMs to Canadians for filling out that form. They'll only use the phone in that case. It's not worth the risk to them.
What can be done? Number one, I would recommend expanding the circumstances in which implied consent is present. Here are some examples. If one party gives their information to another party, call it consent. Two people mutually connected on a social networking or instant networking website call that consent as well. As other witnesses said, remove the two-year and six-month rules. A consumer might not be ready to buy another house from the realtor within two years, but there still might be an affinity there and they can unsubscribe at any time. Remove those rules. Google and Shopper Sciences did a study and some purchases take over one year to actually complete, especially when it comes to tech and appliances.
In the coming weeks, look for the Canadian Chamber to provide some additional recommendations on some of the nuances of CASL reform and some of the software recommendations.
Thank you to the INDU committee for the important work that you're doing. CASL can be improved to be easier for companies to comply with while still protecting consumers. By finding the right balance with this policy, we can set Canada up to thrive in the digital economy.
Thank you, and thank you, Dan, for the extra 30 seconds.
I would like to personally thank Andrew for that.
Mr. Chair and members of the committee, thank you for the opportunity to talk about Canada's anti-spam legislation.
I'll start by saying that members of the Retail Council are very supportive of anti-spam legislation that actually targets fraudulent malicious spammers—the Nigerian prince who is asking for money and that sort of thing. What it does ultimately is it raises confidence in the digital economy. It raises confidence in legitimate marketing activities, but unfortunately, I think CASL has gone far beyond its original intent, and as many of the other witnesses have expressed just now, in the end has had limited success in targeting the Nigerian princes. I shouldn't pick on that, but I just personally received that email myself.
Unfortunately, this costs businesses significantly, not only in terms of systems to comply with the legislation, but also in terms of the ability to do certain types of marketing because they're erring on the side of caution given the way that CASL has been drafted. But that's all right because RCC has a five point plan to solve all of this. I will, without further ado, get right into that.
However, before I begin, I would just like to quickly introduce the Retail Council of Canada (RCC).
The retail industry is the largest private employer in Canada. Over 2.1 million Canadians work in our industry. In 2016, the sector generated wages estimated at more than $73 billion, and the sales of the sector reached $353 billion. The RCC is a not-for-profit, industry-funded association representing small, medium and large retailers in communities across the country.
One of the things that perhaps differentiates the Retail Council from some of the other witnesses here and some other associations is that it is uniquely retail. It represents all sizes, from general merchandising to grocery to hardware to apparel, and from family-owned independent businesses all the way to the largest retailers that you would all recognize.
RCC has a five-point plan to remove the unnecessary red tape in CASL, help contain costs for retailers, and offer the most competitive prices to Canadian consumers:
Number one, only cover activities that are clearly intended to engage the recipient in a new commercial activity.
Number two, provide common-sense clarifications to CASL's unsubscribe provisions.
Number three, allow for additional flexibility in the definition of “express consent”.
Number four, include a consideration of intent.
Number five, repeal the private right of action provisions permanently.
On the first point, covering activity that is clearly intended to engage the recipient in a new commercial activity, the definition of “commercial electronic activity” or CEM should be amended to include only messages that are principally intended to engage the recipient in a new commercial activity.
The challenge here is that many of our members—again, erring on the side of caution and sometimes based on the guidance and advice of the CRTC and on jurisprudence—are concerned about some of the normal emails they send. For example, their message might be providing a receipt or confirmation of purchase, or something along those lines, and then at the bottom it happens to have a caption, as part of the signature block, that says, “shop at our store”. It might contain a link to their website, where, as a separate activity, the consumer may or may not purchase something. Our members worry that it might constitute a commercial electronic message and therefore be covered by CASL.
Clearly, the legislation wasn't meant to cover that sort of thing. The RCC respectfully requests that the committee consider making a recommendation to clarify the legislation to ensure that kind of messaging is not covered.
To the second point, on common-sense clarifications to CASL's unsubscribe mechanisms, most consumers identify by brand and may not be aware that a certain company owns several retail outlets or several brands. I won't name any specifically, but if a consumer were to sign up for a specific brand's messaging, and then wanted to unsubscribe from that messaging, the way that the legislation is currently written it is unclear. Certainly, many of RCC's members err on the side of caution, which means they are unsubscribing consumers from all of the brands that the company owns, which is neither in the business interest of the retailer nor in the interest of the consumer.
For example, I subscribe to CEMs from a toy store, and that toy store happens to be owned by a hardware store that has a number of other stores. I want to unsubscribe from that toy store's messages. Right now, the way that it's being interpreted by most of our members is that they are unsubscribing from every message, every brand, that the hardware store owns, and that's not in the interest of business nor in the interest of the consumer.
The same thing goes with the type of messaging. Perhaps I want to receive a newsletter from that toy store, but I don't want to receive another type of messaging from that store. There should be a clarification in the legislation to allow consumers to unsubscribe specifically from brands or types of messaging for which the consent was given in the first place, and it should be clarified that they're not inadvertently unsubscribing from everything.
To my third point, on additional flexibility on the definition of “express consent”, the current definition appears to require that every conceivable purpose for consent be included in the request, which is unwieldy and very bulky. The way it's being worded now by many of our members is very lengthy and refers to emails and whatever other types of messaging. I think the legislation should be amended to specifically allow for reasonable, similar types of messaging so that it's in the best interests of business and consumers that the consent request is very simple and straightforward, and not this big legalistic blurb. My apologies to the attorneys on the panel that it be easy to read.
Include a consideration of intent. Companies that are trying to comply and that are 99% compliant, that may have inadvertently made a mistake and sent one message, are not the same as that nasty, fraudulent, malicious spammer, and therefore should not be subject to the same compliance and enforcement actions and penalties. The legislation should include a consideration of consent. Finally, the private right of action provisions should be repealed permanently. Canadian retailers need to operate in a certain and stable environment. I think that would only serve to benefit litigators.
There is one final thing I'd like to flag to the committee, although it's not part of the five-point plan. I love my loyalty programs. Most Canadian consumers and businesses love them. Loyalty programs are challenging right now. It's a bit of a grey area in terms of whether you can send messages to members of loyalty programs. I just wanted to flag that and let you know that the Retail Council will be working with members of former Industry Canada, now ISED, and CRTC to solve that problem.
In conclusion, thank you once again for the opportunity to share with you the retailers' perspective on Canada's anti-spam legislation.
I think the point about staff that I was making and the allocation of the powers to staff without oversight directly from the CRTC is problematic when you have a new law with very vague provisions and very vague standards. You're putting it all on the shoulders of front-line staff to interpret that, to deal with the companies, to issue notices of violation. Even if there is a question that comes up, as it has in several of the investigations in which I've been involved on behalf of clients, there's a question of legal interpretation. Does the law really say that? Am I guilty of something? If I'm a business, before I want to settle, I want to know that I've done something contrary to the law. There can be a live question, and there's no mechanism. If staff doesn't agree with you, you're going to get a notice of violation, which has its own consequences in terms of adverse publicity, and there's no mechanism where you can even ask for a ruling on it from the commission, the appointed GIC members of the commission, so you can get a bit more certainty about how it's enforced. I think that's part of it.
The other part of it is the way it works. The CRTC tries to get undertakings. Under the act they can get an undertaking settlement essentially from an organization without having to issue a notice of violation. Organizations are in a situation where the CRTC staff approach them and say that they think they're guilty of this and the CRTC thinks they should pay a penalty of x and agree to the following things. If they don't agree with that, the CRTC staff are going to issue a notice of violation for x plus 25% or 50%. Companies are really in a bind, and they have to gamble about running the gauntlet and bothering to appeal it to the CRTC or just cut their losses, take their lumps, pay the fine and move on with life. In many cases, they're choosing the latter. In some cases, even for issues where it wouldn't have stood up, the law didn't apply in that way, the company just says it's worth paying a few tens of thousands of dollars to get out of it and have it done.
It's great to be in the last round, because a lot of ground has already been covered. It is such a challenge for the work that we need to do, because on the one hand, we totally want to make sure that we have an environment and a climate where businesses are able to do business and to do it with ease and be competitive, and to be competitive internationally. At the same time, we need to make sure that this piece of legislation that was created in the first instance is actually intended to do what it needs to do: to get rid of the bad players and protect people. We haven't heard a whole lot from groups or individuals.
I'll give you an example. My riding is perfect. I have a proliferation of amazing businesses ranging in scale from small and medium-sized, or SMEs, to multinationals, and I have a whole range of people who are seniors, who are regular people. They cover the gamut of diversity, so you're not necessarily looking at people whose first language is English. I'm looking for practical solutions that don't throw the baby out with the bathwater but can help achieve that balance, as almost every single one of you said. I'm just going to go to a couple of them.
Mr. McLinton, on the point, if simplified, could there be technological tools that will then help people comply with greater ease? You said it costs $40,000 for your little organization. Have your clients or your members told you that this is what we could do to comply?
At home, how much do I feel my day is improved when my mailbox is filled with more ads? I guess it's good for Canada Post, but when I canvass and I am talking to Canadians, they don't tell me, “I need more direct mail in my mailbox”, or “I need more spam”, or “I need more advertising on my device”. That's what we're getting at here.
What we're getting at is a discussion related to the privilege and right to actually disperse information. The fact of the matter is that some of the ways of dispersing it—in this case, whether it be by legitimate or non-legitimate businesses—have an actual economic effect on people, as well as a privacy effect that they didn't ask for.
Why do you think so many people are actually complaining about this, if that's the case? Hundreds of thousands of people complain each year to the CRTC. Why do you think they're complaining about receiving information, legally or illegally solicited, to their devices?
Does anybody have an answer for that?
A hundred per cent, and that's what I think consumers' choice should be about. The consumers' choice should have that. When you pay on a regular basis—I say this ad nauseam—you are paying for these devices that can actually get contaminated, can get ruined and cause significant problems for your daily activity—your business activity. I have plenty of businesses that have told me they're glad this legislation has actually been put in place, because they're not bogged down by a bunch of crap and viruses where they're having IT specialists come in and clean out a bunch of garbage.
I agree that we can't control the foreign ones to the fullest degree, unless we get actual international agreements. That can be done through trade agreements, maybe, in the future. In Canada, we can control this part. We can make a difference.
Consent is the primary thing for most people. Again, it's a privilege, not a right. My devices, expenditure, intrusion, and potential exposure of privacy can be affected just because somebody might have the next best deal for me and they presume that I need to know that. That's the thing we're getting at here. It's the mere fact that this activity, which is unsolicited, is affecting people's daily lives and businesses.
I know the private right of action has now been suspended. It's been suspended, basically, because of theoretical arguments. I have concerns about that, because it was well delivered in terms of part of this legislation, and we're actually suspending it right now. The private right of action was the counterbalance for that. If it's a constitutional challenge, I find it interesting that lawyers can't afford to bring the constitutional challenge to the Supreme Court, if that's the case. If any group actually had pro bono expertise in a pro bono activity, it would be a group of lawyers. I've seen constitutional challenges for different things.
At the end of the day, how do we get to making this more efficient for business? Do we scrap it and go back to zero? Do we look to amend it to make it more efficient and fair for consumer protection as the number one thing, and to allow access for businesses that are legitimate, and then see? Then, how do we go after the international?
I'll start with Ms. Provato, and then quickly go across, if we can.