Will Canada’s anti-spam law (CASL) inhibit adoption of new technologies? Will it limit the participation of Canadian firms in exploring innovative new services and business models?
These were real questions that emerged from an exchange on Twitter earlier today.
As described by Wikipedia, iBeacon is the trademark for an indoor proximity system that Apple calls “a new class of low-powered, low-cost transmitters that can notify nearby iOS 7 devices of their presence.
That led to a real question:
Serious question for Canadian #CASL lawyers: Will iBeacon apps need store-by-store explicit opt-in? http://t.co/NhPIoUeEDP
For 8 years, I have been writing about the problem of legislation dealing with our right to be rude:
In a democratic society, I think you have the right to be stupid, you have the right to be rude and we should try to teach telephone etiquette, not legislate it.
A week later, still in May 2006, I wrote more directly about the hidden cost of spam, saying “I think that a democracy gives you the right to be merely offensive and annoying – otherwise, my brother would say that I should have been put behind bars years ago.”
In 2008, I warned “Worst case will see us get it wrong and introduce costs on legitimate businesses while doing nothing to stem the flow of the real garbage filling our inboxes.”
In 2010, I wrote, “the bill would be better titled the Electronic Commerce Restrictions Act: it discourages many efficiencies that should be available to businesses of all sizes in reaching out to new customers.”
As CASL was proceeding a year and a half ago, I cautioned, “we strayed too far from trying to target fraud. In doing so, Canada is going to cause harm to the adoption of digital technologies and electronic commerce.” At the end of the day, this translates into higher costs for consumers.
The Government should promptly suspend CASL’s operation until a Parliamentary Committee or special committee can review it and make recommendations on whether to kill it permanently or how to fix it. The Government could instead refer it to the Supreme Court of Canada for an opinion on CASL’s constitutionality. Either way, Canadians of all stripes would be put out of the collective misery of dealing with CASL.
Some of the things I have been thinking about this week. Perhaps they will percolate into a bigger post over the summer. Otherwise, I thought I would share these thoughts with you. Please feel free to comment.
Over the past few years, Canada has enacted a number of regulatory and legislative constraints on the delivery of content over the internet. Some have been proclaimed (with pride) as being first in the world, such as internet traffic management, or among the most protective, in the case of anti-spam laws.
It may be worthwhile for some academic researchers to take a look at the impact of regulating internet content in Canada, from an economic perspective, social policy, cultural issues, etc.
Are we restricting the evolution of creative business models and innovation through regulation?
The government couldn’t be happier. The CRTC has reported since the that it has already received more than a thousand complaints since the anti-spam law took effect on Tuesday. CBC reported in the most dramatic fashion: CRTC flooded with more than 1,000 anti-spam complaints. “Flooded”!
The Industry Minister’s press secretary went onto Twitter boasting that this is evidence of how serious a problem we have:
How does the sudden tracking of complaints show spam is a serious problem? 10 years after there was an anti-spam task force – that’s right, 10 years – the press secretary to the Industry Minister says that 1000 complaints “shows this is a serious problem.”
The reality is that 1000 isn’t really such a large number. Remember that there are more than 30 million internet users in Canada and there are billions of spam messages being trapped by Canadians’ email systems every day – most never reaching the end user. The 1000 complaints from 35 million users should be compared to about 500 complaints being received by the CRTC every day for violations of the national Do Not Call List – a system that has been operating for more than 5 years already. There are only about 40% as many phone numbers in the DNCL as there are email users. So the CRTC was not “flooded” with complaints.
Unfortunately, the number of complaints doesn’t indicate anything about the effectiveness of the solution. Or the lack of effectiveness of this government’s solution. Or the cost to the economy of what has been imposed.
One might have hoped that 10 years would have produced better evidence.
Of course, proper evidence might have avoided the regulatory over-reach of Canada’s Anti-Spam Law (CASL). Jeffrey Graham, of Borden Ladner Gervais asks “Why would it not be enough for the law to simply provide that if there is an existing relationship, broadly defined, and an effective opt out right clearly identified in the promotional emails, the public interest is adequately protected?” In his OpEd in the Financial Post, he says that the compliance costs could be in the hundreds of millions of dollars.
The anti-spam law, he says, is an infringement on “commercial speech,” which is guaranteed under the Charter of Rights and Freedoms. The law “ignores that consumers benefit from receiving useful information about products and services” ‘ from businesses. It increases competition and expands consumers’ market knowledge.
Commercial Electronic Messages – and I mean otherwise legal, non-fraudulent, non-malicious messages – increase competition and expand market knowledge. Why would we want to block increased competition?
If there are consumers who believe that CASL is worth the costs of compliance for Canada’s business community, I wonder if they understand the costs that are ultimately being borne by them? The direct costs will ultimately be passed on to Canadian consumers, as will the costs associated with reduced competition and reduced market knowledge.
Our government has imposed yet another impediment to the adoption of e-commerce and information technology in Canada. It is another contributor to lower levels of competition across the board in Canada’s economy.
Once again, CPAC recorded portions of The 2014 Canadian Telecom Summit and a number of sessions are now available for viewing on demand:
Keynote address – Monday, June 16, 2014: Guy Laurence, President & CEO, Rogers Communications
Panel – Competition in Telecom – Monday, June 16, 2014: Robert Crandall (Brookings Institution), John Mayo (Georgetown University), Eli Noam (Columbia University), Roger Ware (Queen’s University), Leonard Waverman (McMaster University) and moderated by Dvai Ghose (Canaccord Genuity)
Panel – The Continuing Evolution of TV – Monday, June 16, 2014: Dave Caputo (Sandvine), Dragan Nerandzic (Ericsson Canada), Charlotte Burke (Quickplay Media), Michael Hennessy (CMPA), David Purdy (Rogers Communications) and moderated by Jeff Fan (Scotiabank)
Keynote address – Monday, June 16, 2014: Bernard Lord, President & CEO, CWTA
Keynote address – Tuesday, June 17, 2014: Tony Ciceretto, President & CEO, Cogeco Data Services and Peer 1 Hosting
Panel – The Regulatory Blockbuster – Tuesday, June 17, 2014: Jonathan Daniels (Bell), Ken Engelhart (Rogers Communications), Ted Woodhead (TELUS), Chris Tacit (Tacit Law), Simon Lockie (WIND Mobile) and moderated by Greg O’Brien (editor, Cartt.ca)
Fireside chat – Tuesday, June 17, 2014: Jay Mehr, EVP & COO, Shaw Communications
Keynote address – Wednesday, June 18, 2014: Pierre Dion, President & CEO, Quebecor
Whether you were at The 2014 Canadian Telecom Summit or not, all of these sessions provide important summer viewing and a taste of what takes place each year at Canada’s most important ICT event.
Be sure to get on the mailing list for The Canadian Telecom Summit. The 2015 event will take place in Toronto, June 1-3, 2015.
