Bill S-2
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S-2
Third Session, Thirty-seventh Parliament,
52 Elizabeth II, 2004
SENATE OF CANADA
BILL S-2
An Act to prevent unsolicited messages on the Internet
first reading, February 3, 2004
The Honourable Senator Oliver
0309
Summary
This enactment provides for initiatives to control spam on the Internet.
It requires the Minister of Industry to initiate international consultation with other governments and report annually to Parliament on progress.
It allows the Minister to establish an Internet Consumer Protection Council or designate an existing body to fulfill the role of the Council. The Council will set standards for its members and for procedures to be used to reduce spam. No person may operate an Internet service provider business without being a member of the Council. If the Minister is not satisfied with the Council’s operation, the Minister may appoint directors and pass by-laws to administer it.
Any person may give a notice, to the Minister or the body to which the Minister delegates the responsibility, that they wish to be on a “no-spam list”, and persons sending spam must first check to see if the address is on the “no-spam list”. The list will not be a public document and the Minister will provide only negative information from it, for example, that an address is not on the list.
Wherever a message is initiated, if it is received by a person in Canada it is deemed to have been sent to that person, and the act of sending it is deemed to have been carried out in Canada.
The enactment provides for offences and punishments that are more severe in respect of messages that involve pornography, explicit sexual activity or attempted fraud or that target children as receivers.
It establishes a cause of civil action in nuisance for sending excessive spam and deems damage to have been caused if the volume is sufficient to cause inconvenience.
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3rd Session, 37th Parliament,
52 Elizabeth II, 2004
senate of canada
BILL S-2
An Act to prevent unsolicited messages on the Internet
Preamble
WHEREAS the Internet is a national and international asset of great value in communication, education and research;
AND WHEREAS the usefulness and efficiency of the Internet is threatened by large volumes of unsolicited messages that by their volume constitute a nuisance and waste time;
AND WHEREAS many of these messages contain or offer pornographic material, advocate illegal activities or solicit or offer business that is of no interest to recipients;
AND WHEREAS Internet service providers have an ability to cooperate to control unwanted messages;
AND WHEREAS, because of the international nature of the Internet, both international cooperation and the cooperation and regulation of Internet service providers in Canada are necessary to control the flow of such messages;
NOW, THEREFORE, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
Short title
1. This Act may be cited as the Spam Control Act.
Definitions
2. The definitions in this section apply in this Act.
“address”
« adresse »
« adresse »
“address” means an address to which e-mail may be sent.
“Association”
« Association »
« Association »
“Association” means the Canadian Association of Internet Providers.
“Council”
« Conseil »
« Conseil »
“Council” means the Internet Consumer Protection Council incorporated by the Minister or the body designated by the Minister under subsection 4(2).
“e-mail”
« courriel »
« courriel »
“e-mail” means a message from a sender to one or more recipients transmitted by the Internet.
“Internet”
« Internet »
« Internet »
“Internet” means the international electronic communication network known by that name.
“Internet service provider”
« fournisseur de services Internet »
« fournisseur de services Internet »
“Internet service provider” or “provider” means a person who provides a service to give the public access to the Internet.
“Minister”
« ministre »
« ministre »
“Minister” means the Minister of Industry.
“no-spam list”
« liste anti-pourriel »
« liste anti-pourriel »
“no-spam list” means the list maintained under section 8.
“no-spam notice”
« avis anti-pourriel »
« avis anti-pourriel »
“no-spam notice” means a notice given by the owner of an address that no spam should be sent to the address.
“opt-out message”
« message anti-pourriel »
« message anti-pourriel »
“opt-out message” means an instruction from the owner of an address
(a) to the sender of a message that the sender must not send any further messages to the address; or
(b) to the sender of a message who sends it on behalf of another person that the sender must advise the other person not to send any further messages to the address.
“spam”
« pourriel »
« pourriel »
“spam” means one or more unsolicited messages sent and received on the Internet, but does not include a message sent by a person to another person with whom they have an existing commercial or personal relationship.
“spam filter”
« filtre anti-pourriel »
« filtre anti-pourriel »
“spam filter” means an electronic automated process that is established by an Internet service provider to analyze incoming messages and that
(a) maintains the confidentiality of, and does not reveal to the provider or any person, the content of any message; and
(b) rates every incoming message to determine whether it is likely to be spam, using factors that may include the following:
(i) it contains words or images commonly found in spam,
(ii) it contains words or images commonly found in pornography,
(iii) it was sent by any person or site on a list, established by the Council, of persons or sites that are known to send spam,
(iv) the sender is not identified with a valid address,
(v) the intended recipient is not properly and individually identified or is identified only as a member of a class of recipients to whom a message is to be sent,
(vi) the sender is not a person to whom the intended recipient has previously communicated through the provider,
(vii) the sender is a person to whom the intended recipient has sent an opt-out message,
(viii) the message appears to offer goods or services and does not provide for the intended recipient to send an opt-out message, and
(ix) the sender is or purports to be an agent of a person who has filed a list of authorized agents under section 9 and the sender is not on that list.
International consultation
3. (1) The Minister shall initiate consultation with officials of governments of the provinces and of other countries with the objects of
(a) sharing information on means to control spam and on persons who are identified as senders of spam;
(b) finding new ways to control and limit the flow of spam; and
(c) cooperating in law enforcement activities related to the misuse of the Internet for illegal purposes or the sending of spam.
Annual report
(2) The Minister shall prepare a report of activities under subsection (1) and subsection 5(7) in respect of every year and shall cause it to be laid before each House of Parliament on any of the first five days on which that House sits after April 1 of the following year.
Referral to committee
(3) Every report under subsection (2) that is laid before a House is deemed to be referred to the standing committee of that House that normally deals with matters under the administration of the Minister.
Consultation with
Association
4. (1) The Minister shall, after consultation with the Association, determine the most effective way to
(a) establish a body to carry out the duties of the Council under this Act; or
(b) assign those duties to an existing body.
Incorporation or designation
(2) For the purposes of this Act, the Minister may
(a) cause to be incorporated under an Act of Parliament a body without share capital to be known as the Internet Consumer Protection Council; or
(b) designate an existing body to act as and fulfill the duties of the Council under this Act.
Objects
(3) The objects of the Council are
(a) to represent the interests of all Internet service providers in Canada and their customers by
(i) promoting cooperation among its members to control and reduce spam,
(ii) regulating the operations of its members in the interests of their customers, and
(iii) advising the Minister on matters relating to service to the public through the Internet, including the prevention of misuse of the Internet and the control and reduction of spam; and
(b) to cooperate in the development and approval of spam filters or other means of controlling spam for use by all Internet service providers.
Members
(4) The Council shall admit as members those persons who are required to be members under section 7 and may admit as members those persons who may apply for membership but are not required to be members under section 7.
Fees
(5) The Council may charge fees for membership.
Non profit operation
(6) The Council shall operate on a not-for-profit basis.
Members
5. (1) Membership in the Council shall be open to
(a) those persons who are required to be members under section 7;
(b) any person described in paragraph 7(b) or (c) who is not required to be a member but wishes to be a member; and
(c) any person nominated by the Minister under paragraph (5)(b).
Directors
(2) The Council shall be administered by a board of not less than seven directors.
Interim
directors
(3) If the Minister establishes a body under paragraph 4(2)(a), the Minister shall, within 90 days after the coming into force of this Act, appoint seven persons knowledgeable about the Internet, of whom at least four shall be Internet service providers, to act as the first members and interim directors of the Council.
By-laws of
incorporated body
(4) If a body is established under paragraph 4(2)(a), the Minister shall, in consultation with the interim directors, establish by regulation the initial by-laws of the Council, which shall include a requirement to elect directors from among its members every year, the first election to be held within a year after the coming into force of this Act.
Designated body
(5) If the Minister designates an existing body to act as the Council under paragraph 4(2)(b),
(a) the Minister shall be satisfied that the constitution and by-laws of the body are compatible with the body acting as the Council under this Act; and
(b) one of the directors of the body shall be a person nominated by the Minister.
By-laws
(6) The Council, with the approval of the Minister, may adopt by-laws
(a) for the governance of its administration, functions and procedures;
(b) setting standards for spam filters; and
(c) for regulating the ethical behaviour of its members as Internet service providers.
Action by
Minister to
replace
directors
(7) The Minister may at any time, if not satisfied with the administration of the Council or its success in achieving its objects, remove and replace any director of the Council or establish, repeal or amend any by-law of the Council, or revoke a designation made under paragraph 4(2)(b).
No restriction of membership
6. The Council shall not refuse or terminate the membership of a person who is or represents an Internet service provider, unless the person or provider
(a) is convicted of an offence under this Act;
(b) is convicted of an offence under the Criminal Code related to the use of the Internet; or
(c) contravenes a by-law of the Council that, under the by-laws, is one for which contravention is grounds for termination of membership.
Membership compulsory
7. No person shall own or operate a business that renders or offers the services of an Internet service provider unless
(a) if the person is an individual, the person is a member of the Council;
(b) if the person is a corporation or society, one of its directors is a member of the Council; or
(c) if the person is a partnership or unincorporated business, one of its partners or proprietors is a member of the Council.
No-spam list
8. (1) The Minister shall, within 180 days after the day on which this Act comes into force, establish and maintain a no-spam list.
Notice filed
(2) Any person who is the owner of an address may file with the Minister a no-spam notice in the form and manner determined by the Minister.
Advance check
(3) No person shall send spam to an address unless the person has first determined, from the Minister or the body to which the Minister’s responsibilities under this section are delegated, that the address is not on the no-spam list.
Means for checking
(4) The Minister shall establish electronic means for allowing a person to make the determination required by subsection (3).
No addresses provided
(5) The means established under subsection (4) shall not provide any address to the person.
Confidentiality
(6) The no-spam list is not a public document and the Minister shall not reveal to any person the identity or address of any other person who files a no-spam notice.
List of mailing agents
9. (1) Every person who authorizes an agent to send e-mail on their behalf must promptly notify the Minister
(a) that the agent is so authorized; and
(b) if the authorization is terminated, of the date of termination.
Information
(2) The Minister shall make available to the Council and its members the information the Minister receives under subsection (1).
Delegation to other body
10. The Minister may delegate the Minister’s responsibilities under sections 8, 9 and 16 to any board, commission or agency of the Government of Canada that is accountable to the Minister.
Offences by
e-mail senders
11. Every person commits an offence who
(a) sends spam to an address without identifying it as such;
(b) sends spam to an address
(i) that is on the no-spam list, or
(ii) in respect of which the owner has sent an opt-out message to the person sending the message or to a person whom the person represents in sending the message;
(c) sends spam to an address without determining that the address is not on the no-spam list;
(d) sends spam that does not contain a means for the recipient to send an opt-out message;
(e) sends spam that does not show the address of the sender;
(f) sends spam that offers goods or services on behalf of another person without showing the identity of the other person;
(g) sends spam that offers goods or services and contains a false statement about the goods or services or the identity or address of the sender or another person on behalf of whom the sender is acting; or
(h) sells, trades or offers to sell or trade or uses any means to collect or obtain addresses from the Internet for the purpose of enabling any person to send spam to those addresses.
Offences by
Internet service
providers
12. Every Internet service provider commits an offence who
(a) is an accessory to an offence under paragraphs 11(a) to (g);
(b) is an accessory to an offence under paragraph 11(h);
(c) fails to install a spam filter that complies with standards set in the by-laws of the Council;
(d) fails to use reasonable efforts to prevent spam from going to the provider’s customers, and in the case of a provider who does not follow the standards of the Council, the onus is on that provider to show that reasonable efforts were used; or
(e) knowingly provides false information to the Council or the Minister in a matter related to the Internet or the administration of this Act.
Penalties
13. (1) A person who commits an offence under section 11 or 12 is liable on conviction to a fine not exceeding $500.
Greater penalty in certain cases
(2) A person who commits an offence under any of paragraphs 11(a) to (g) or 12(a) is liable on conviction to a fine not exceeding $1,000, or to imprisonment for a term not exceeding six months, or to both, if the spam contains
(a) material that is child pornography within the meaning of section 163.1 of the Criminal Code;
(b) a depiction of explicit sexual activity; or
(c) a message that constitutes an attempt to defraud the recipient.
Children
(3) A person who commits an offence referred to in subsection (2) in the circumstances described in that subsection is liable on conviction to a fine not exceeding $5,000, or to imprisonment for a term not exceeding one year, or to both, if the spam was
(a) designed to be attractive specifically to children;
(b) directed to any educational institution that is not a post-secondary institution; or
(c) directed to an address at which the sender had reason to believe children were likely to see the spam.
Forbidden to operate
business
(4) In the case of a person convicted of an offence referred to in subsection (2) committed in the circumstances described in that subsection the court may order, and in the case of a person convicted of an offence referred to in subsection (3) committed in the circumstances described in that subsection the court shall order, that the person be prohibited, for a period not exceeding two years, from
(a) being the owner, director, partner, employee or shareholder of an Internet service provider; or
(b) communicating by e-mail with any person for any commercial purpose.
Directors’
punishment
(5) Where a corporation or partnership is convicted of an offence under this section, the court may, in addition to imposing a fine on the corporation or partnership, convict any person who is a director, partner or officer of the corporation or partnership of the same offence, if the court finds that the person ordered the act for which the corporation or partnership was convicted, or knew that it was going to be carried out and tolerated it.
Deeming provision
14. If a person initiates spam from any place in a manner that allows it to be received in Canada, and it is received by another person in Canada, then, for the purposes of section 11,
(a) the person who initiated the spam is deemed to have sent it to the other person, whether or not the person had a specific intent that the other person should receive it, and whether it was initiated within or outside Canada; and
(b) the act of sending is deemed to have been effected in Canada.
Providers
banning senders not
liable
15. (1) An Internet service provider who refuses or cancels service or access to any person who has committed an offence under this Act or who has, on more than one occasion, sent to the provider a message that the provider has reasonable grounds to believe is spam, is not liable to that person for any loss or damage arising from the refusal or cancellation.
Reasonable grounds
(2) An Internet service provider has reasonable grounds to believe that a message is spam if the message fails to pass a spam filter approved by the Council.
Agents
16. (1) If an agent is convicted of an offence under this Act, the Minister may send a notice to anyone who has advised the Minister of an authorization under section 9 that is still valid, requiring the cancellation of the authorization.
Canceling
authority to act
(2) A person who has, by any means, authorized an agent to send messages on their behalf and who receives a notice respecting the agent from the Minister under subsection (1) shall terminate the authorization forthwith.
Not liable
(3) No person who cancels an authorization because of a requirement arising under subsection (2) is liable to the agent for any loss or damage arising from the cancellation.
Cause of action
17. (1) Any person, including an Internet service provider, who receives spam in contravention of this Act in quantities that cause significant inconvenience may bring an action in nuisance in a court of competent jurisdiction against the sender, for damages or any other relief the court considers appropriate, including an injunction.
Deemed
damage
(2) A person who receives spam in quantities that, in the opinion of the court, causes significant inconvenience, is deemed to have suffered damage without it being specifically proved, and the court may award both general and punitive damages.
Confidentiality
18. (1) Nothing in this Act authorizes an Internet service provider to communicate the contents of a message received by the provider to the Council, the Minister or any other person.
Confidentiality
(2) Nothing in this Act authorizes an Internet service provider to communicate the contents of a message received by the provider
(a) except as necessary, in the normal course of the administration of their business, to deliver the message to the addressee or return it to the sender;
(b) under an order of a court; or
(c) under the lawful order of a law enforcement agency for the purposes of law enforcement.
Coming into force
19. This Act comes into force on a day to be fixed by order of the Governor in Council.
Published under authority of the Senate of Canada