Bill C-27
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C-27
Second Session, Fortieth Parliament,
57-58 Elizabeth II, 2009
HOUSE OF COMMONS OF CANADA
BILL C-27
An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act
AS PASSED
BY THE HOUSE OF COMMONS
NOVEMBER 30, 2009
NOVEMBER 30, 2009
90504
RECOMMENDATION
Her Excellency the Governor General recommends to the House of Commons the appropriation of public revenue under the circumstances, in the manner and for the purposes set out in a measure entitled “An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act”.
SUMMARY
This enactment establishes a regulatory framework to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities.
It enacts the Electronic Commerce Protection Act, which prohibits the sending of commercial electronic messages without the prior consent of the recipient and provides rules governing the sending of those types of messages, including a mechanism for the withdrawal of consent. It also prohibits other practices that discourage reliance on electronic means of carrying out commercial activities, such as those relating to the alteration of data transmissions and the unauthorized installation of computer programs. In addition, that Act provides for the imposition of administrative monetary penalties by the Canadian Radio-television and Telecommunications Commission, after taking into account specified factors. It also provides for a private right of action that enables a person affected by an act or omission that constitutes a contravention under that Act to obtain an amount equal to the actual amount of the loss or damage suffered, or expenses incurred, and statutory damages for the contravention.
This enactment amends the Competition Act to prohibit false or misleading commercial representations made electronically.
It also amends the Personal Information Protection and Electronic Documents Act to prohibit the collection of personal information by means of unauthorized access to computer systems, and the unauthorized compiling of lists of electronic addresses.
Finally, it makes related amendments to the Competition Act, the Personal Information Protection and Electronic Documents Act, the Canadian Radio-television and Telecommunications Commission Act and the Telecommunications Act.
Also available on the Parliament of Canada Web Site at the following address:
http://www.parl.gc.ca
http://www.parl.gc.ca
TABLE OF PROVISIONS
AN ACT TO PROMOTE THE EFFICIENCY AND ADAPTABILITY OF THE CANADIAN ECONOMY BY REGULATING CERTAIN ACTIVITIES THAT DISCOURAGE RELIANCE ON ELECTRONIC MEANS OF CARRYING OUT COMMERCIAL ACTIVITIES, AND TO AMEND THE CANADIAN RADIO-TELEVISION AND TELECOMMUNICATIONS COMMISSION ACT, THE COMPETITION ACT, THE PERSONAL INFORMATION PROTECTION AND ELECTRONIC DOCUMENTS ACT AND THE TELECOMMUNICATIONS ACT
SHORT TITLE
1. Electronic Commerce Protection Act
INTERPRETATION
2. Definitions
PURPOSE
3. Purpose of Act
HER MAJESTY
4. Act binding on certain agents
APPLICATION
5. Broadcasting excluded
REQUIREMENTS AND PROHIBITIONS
6. Unsolicited electronic messages
7. Altering transmission data
8. Installation of computer program
9. Contravention of sections 6 to 8
10. Express consent — sections 6 to 8
11. Unsubscribe mechanism — section 6
12. Contravention of section 6
13. Burden of proof
ADMINISTRATIVE MONETARY PENALTIES
Designation
14. Designated persons
Preservation Demand
15. Preservation demand
16. Application for review
Notice to Produce
17. Notice for production
18. Application for review
Warrants
19. Warrant
Violations
20. Violations
Undertakings
21. Entry into undertaking
Notices of Violation
22. Notice of violation
23. Limitation period
Determination of Responsibility
24. Options
25. Representations
26. Restraining orders
Appeal to Federal Court of Appeal
27. Appeal to Federal Court of Appeal
Recovery of Penalties and Other Amounts
28. Debts due to Her Majesty
29. Certificate of default
Rules about Violations
30. For greater certainty
31. Directors, officers, etc., of corporations
32. Vicarious liability
33. Defence
General Provisions
34. Questions of law and fact
35. Judicial powers
36. Panels of Commission
37. Rules of procedure
38. Evidence
39. Information may be made public
40. Enforcement
INJUNCTION
41. Injunction
OFFENCES
42. Non-compliance
43. Obstruction and false information
44. Directors and officers of corporations
45. Vicarious liability
46. Offence
PRIVATE RIGHT OF ACTION
Application
47. Application
48. Limitation
49. Notice of discontinuance
Hearing
50. Right to intervene
51. Order
Rules about Contraventions
52. Directors and officers of corporations
53. Vicarious liability
54. Defence
55. Liability
CONSULTATION AND DISCLOSURE OF INFORMATION
56. Disclosure by an organization
57. Consultation
58. Disclosure by Commission
59. Use of information by Commission
60. Information shared with the government of a foreign state, etc.
60.1 Reports to Minister of Industry
GENERAL
61. Mandate
62. Appointment of experts, etc.
63. Regulations — Governor in Council
63.1 Review of Act by Parliamentary committee
TRANSITIONAL PROVISIONS
63.2 Existing business or non-business relationships
63.3 Software updates and upgrades
THIS ACT
64. Amendment
CANADIAN RADIO-TELEVISION AND TELECOMMUNICATIONS COMMISSION ACT
65. Amendment
COMPETITION ACT
66–77. Amendments
PERSONAL INFORMATION PROTECTION AND ELECTRONIC DOCUMENTS ACT
78–83. Amendments
TELECOMMUNICATIONS ACT
84–86. Amendments
COMING INTO FORCE
87. Order in council
2nd Session, 40th Parliament,
57-58 Elizabeth II, 2009
house of commons of canada
BILL C-27
An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
SHORT TITLE
Short title
1. This Act may be cited as the Electronic Commerce Protection Act.
INTERPRETATION
Definitions
2. (1) The following definitions apply in this Act.
“commercial activity”
« activité commerciale »
« activité commerciale »
“commercial activity” means any particular transaction, act or conduct or any regular course of conduct that is of a commercial character, whether or not the person who carries it out does so in the expectation of profit, other than any transaction, act or conduct that is carried out for the purposes of law enforcement, public safety, the protection of Canada, the conduct of international affairs or the defence of Canada.
“Commission”
« Conseil »
« Conseil »
“Commission” means the Canadian Radio-television and Telecommunications Commission.
“Commissioner of Competition”
« commissaire de la concurrence »
« commissaire de la concurrence »
“Commissioner of Competition” means the Commissioner of Competition appointed under subsection 7(1) of the Competition Act.
“computer program”
« programme d’ordinateur »
« programme d’ordinateur »
“computer program” has the same meaning as in subsection 342.1(2) of the Criminal Code.
“computer system”
« ordinateur »
« ordinateur »
“computer system” has the same meaning as in subsection 342.1(2) of the Criminal Code.
“court of competent jurisdiction”
« tribunal compétent »
« tribunal compétent »
“court of competent jurisdiction” means the Federal Court or a superior court of a province.
“data”
« données »
« données »
“data” means signs, signals, symbols or concepts that are being prepared or have been prepared in a form suitable for use in a computer system.
“document”
« document »
« document »
“document” has the same meaning as in section 487.011 of the Criminal Code.
“electronic address”
« adresse électronique »
« adresse électronique »
“electronic address” means an address used in connection with the transmission of an electron- ic message to
(a) an electronic mail account;
(b) an instant messaging account;
(c) a telephone account; or
(d) any similar account.
“electronic message”
« message électronique »
« message électronique »
“electronic message” means a message sent by any means of telecommunication, including a text, sound, voice or image message.
“person”
« personne »
« personne »
“person” means an individual, partnership, corporation, organization, association, trustee, administrator, executor, liquidator of a succession, receiver or legal representative.
“Privacy Commissioner”
« Commissaire à la protection de la vie privée »
« Commissaire à la protection de la vie privée »
“Privacy Commissioner” means the Privacy Commissioner appointed under section 53 of the Privacy Act.
“telecommunications facility”
« installation de télécommunication »
« installation de télécommunication »
“telecommunications facility” means any facility, apparatus or other thing that is used for telecommunications or for any operation directly connected with telecommunications.
“telecommunications service”
« service de télécommunication »
« service de télécommunication »
“telecommunications service” means a service, or a feature of a service, that is provided by means of telecommunications facilities, whether the telecommunications service provider owns, leases or has any other interest in or right respecting the telecommunications facilities and any related equipment used to provide the service.
“telecommunications service provider”
« télécommunicateur »
« télécommunicateur »
“telecommunications service provider” means a person who, independently or as part of a group or association, provides telecommunications services.
“transmission data”
« données de transmission »
« données de transmission »
“transmission data” means data that
(a) relates to the telecommunications functions of dialling, routing, addressing or signalling;
(b) either is transmitted to identify, activate or configure an apparatus or device, including a computer program, in order to establish or maintain a communication, or is generated during the creation, transmission or reception of a communication and identifies or purports to identify the type, direction, date, time, duration, size, origin, destination or termination of the communication; and
(c) does not reveal the substance, meaning or purpose of the communication.
Meaning of commercial electronic message
(2) For the purposes of this Act, a commercial electronic message is an electronic message that, having regard to the content of the message, the hyperlinks in the message to content on a website or other database, or the contact information contained in the message, it would be reasonable to conclude has as its purpose, or one of its purposes, to encourage participation in a commercial activity, including an electronic message that
(a) offers to purchase, sell, barter or lease a product, goods, a service, land or an interest or right in land;
(b) offers to provide a business, investment or gaming opportunity;
(c) advertises or promotes anything referred to in paragraph (a) or (b); or
(d) promotes a person, including the public image of a person, as being a person who does anything referred to in any of paragraphs (a) to (c), or who intends to do so.
Other commercial electronic message
(3) An electronic message that contains a request for consent to send a message described in subsection (2) is also considered to be a commercial electronic message.
Exclusion
(4) An electronic message described in subsection (2) or (3) that is sent for the purposes of law enforcement, public safety, the protection of Canada, the conduct of international affairs or the defence of Canada is not considered to be a commercial electronic message.
Person to whom a message is sent
(5) For the purposes of this Act, a reference to the person to whom an electronic message is sent means the holder of the account associated with the electronic address to which the message is sent, as well as any person who it is reasonable to believe is or might be authorized by the account holder to use the electronic address.
PURPOSE
Purpose of Act
3. The purpose of this Act is to promote the efficiency and adaptability of the Canadian economy by regulating commercial conduct that discourages the use of electronic means to carry out commercial activities, because that conduct
(a) impairs the availability, reliability, efficiency and optimal use of electronic means to carry out commercial activities;
(b) imposes additional costs on businesses and consumers;
(c) compromises privacy and the security of confidential information; and
(d) undermines the confidence of Canadians in the use of electronic means of communication to carry out their commercial activities in Canada and abroad.
HER MAJESTY
Act binding on certain agents
4. This Act is binding on any corporation that is expressly declared by or under any Act of Parliament or of the legislature of a province to be an agent of Her Majesty, when the corporation is acting as such in the course of any commercial activity.
APPLICATION
Broadcasting excluded
5. This Act does not apply in respect of broadcasting by a broadcasting undertaking, as those terms are defined in subsection 2(1) of the Broadcasting Act.
REQUIREMENTS AND PROHIBITIONS
Unsolicited electronic messages
6. (1) No person shall send or cause or permit to be sent to an electronic address a commercial electronic message unless
(a) the person to whom the message is sent has consented to receiving it, whether the consent is express or implied; and
(b) the message complies with subsection (2).
Contents of message
(2) The message must be in a form that conforms to the prescribed requirements and must
(a) set out prescribed information that identifies the person who sent the message and the person — if different — on whose behalf it is sent;
(b) set out information enabling the person to whom the message is sent to readily contact one of the persons referred to in paragraph (a); and
(c) set out an unsubscribe mechanism in accordance with subsection 11(1).
Period of validity of contact information
(3) The person who sends the commercial electronic message and the person — if different — on whose behalf the commercial electronic message is sent shall ensure that the contact information referred to in paragraph (2)(b) is valid for a minimum of 60 days after the message has been sent.
Interpretation
(4) For the purposes of subsection (1)
(a) an electronic message is considered to have been sent once its transmission has been initiated; and
(b) it is immaterial whether the electronic address to which an electronic message is sent exists or whether an electronic message reaches its intended destination.
Exception
(5) This section does not apply to a commercial electronic message
(a) that is sent by or on behalf of an individual to another individual with whom they have a personal or family relationship, as defined in the regulations;
(b) that is sent to a person who is engaged in a commercial activity and consists solely of an inquiry or application related to that activity; or
(c) that is of a class, or is sent in circumstances, specified in the regulations.
Exception
(5.1) Paragraph (1)(a) does not apply to a commercial electronic message that solely
(a) provides a quote or estimate for the supply of a product, goods, a service, land or an interest or right in land, if the quote or estimate was requested by the person to whom the message is sent;
(b) facilitates, completes or confirms a commercial transaction that the person to whom the message is sent previously agreed to enter into with the person who sent the message or the person — if different — on whose behalf it is sent;
(c) provides warranty information, product recall information or safety or security information about a product, goods or a service that the person to whom the message is sent uses, has used or has purchased;
(d) provides notification of factual information about
(i) the ongoing use or ongoing purchase by the person to whom the message is sent of a product, goods or a service offered under a subscription, membership, account, loan or similar relationship by the person who sent the message or the person — if different — on whose behalf it is sent, or
(ii) the ongoing subscription, membership, account, loan or similar relationship of the person to whom the message is sent;
(e) provides information directly related to an employment relationship or related benefit plan in which the person to whom the message is sent is currently involved, is currently participating or is currently enrolled;
(f) delivers a product, goods or a service, including product updates or upgrades, that the person to whom the message is sent is entitled to receive under the terms of a transaction that they have previously entered into with the person who sent the message or the person — if different — on whose behalf it is sent; or
(g) communicates for a purpose specified in the regulations.
Exception
(6) This section does not apply to a telecommunications service provider merely because the service provider provides a telecommunications service that enables the transmission of the message.
Exception
(7) This section does not apply to a commercial electronic message
(a) that is, in whole or in part, an interactive two-way voice communication between individuals;
(b) that is sent by means of a facsimile to a telephone account; or
(c) that is a voice recording sent to a telephone account.
Altering transmission data
7. (1) No person shall, in the course of a commercial activity, alter or cause to be altered the transmission data in an electronic message so that the message is delivered to a destination other than or in addition to that specified by the sender, unless the alteration is made with the express consent of the sender or the person to whom the message is sent, or is made in accordance with a court order.
Exception
(2) Subsection (1) does not apply if the alteration is made by a telecommunications service provider for the purposes of network management.
Installation of computer program
8. (1) No person shall, in the course of a commercial activity, install or cause to be installed a computer program on any other person’s computer system or, having so installed or caused to be installed a computer program, cause an electronic message to be sent from that computer system, unless the person has obtained the express consent of the owner or an authorized user of the computer system or is acting in accordance with a court order.
Application
(2) A person contravenes subsection (1) only if the computer system is located in Canada at the relevant time or if the person either is in Canada at the relevant time or is acting under the direction of a person who is in Canada at the time when they give the directions.
Contravention of sections 6 to 8
9. No person shall procure or cause to be procured the doing of any act contrary to any of sections 6 to 8.
Express consent — sections 6 to 8
10. (1) A person who seeks express consent for the doing of an act described in any of sections 6 to 8 must, when requesting consent, set out clearly and simply the following information:
(a) the purpose or purposes for which the consent is being sought;
(b) prescribed information that identifies the person seeking consent and, if the person is seeking consent on behalf of another person, prescribed information that identifies that other person; and
(c) any other prescribed information.
Exception
(1.1) Despite paragraph (1)(b), for the purposes of section 6, if a person is seeking express consent on behalf of a person whose identity is not known,
(a) the only information that is required to be provided under that paragraph is prescribed information that identifies the person seeking consent; and
(b) the person seeking consent must comply with the regulations in respect of the use that may be made of the consent and the conditions on which the consent may be used.
Additional requirement — section 8
(2) A person who seeks express consent for the doing of any act described in section 8 must, when requesting consent, also, in addition to setting out any other prescribed information, clearly and simply describe, in general terms, the function and purpose of the computer program that is to be installed if the consent is given.
Additional requirements associated with certain functions
(2.1) In addition to the requirements set out in subsections (1) and (2), if the computer program that is to be installed performs one or more of the functions described in subsection (2.2), the person who seeks express consent must, when requesting consent, clearly and prominently, and separately and apart from the licence agreement,
(a) describe the program’s material elements that perform the function or functions, including the nature and purpose of those elements and their reasonably foreseeable impact on the operation of the computer system; and
(b) bring those elements to the attention of the person from whom consent is being sought in the prescribed manner.
Description of functions
(2.2) A function referred to in subsection (2.1) is any of the following functions that the person who seeks express consent knows and intends will cause the computer system to operate in a manner that is contrary to the reasonable expectations of the owner or an authorized user of the computer system:
(a) collecting personal information stored on the computer system;
(b) interfering with the owner’s or an authorized user’s control of the computer system;
(c) changing or interfering with settings, preferences or commands already installed or stored on the computer system without the knowledge of the owner or an authorized user of the computer system;
(d) changing or interfering with data that is stored on the computer system in a manner that obstructs, interrupts or interferes with lawful access to or use of that data by the owner or an authorized user of the computer system;
(e) causing the computer system to communicate with another computer system, or other device, without the authorization of the owner or an authorized user of the computer system;
(f) installing a computer program that may be activated by a third party without the knowledge of the owner or an authorized user of the computer system; and
(g) performing any other function specified in the regulations.
Exception
(2.3) Subsection (2.1) does not apply in respect of a computer program that performs a function described in subsection (2.2) if that function only collects, uses or communicates transmission data or performs an operation specified in the regulations.
Updates and upgrades
(2.4) Subsections (1) and (2) do not apply in respect of the installation of an update or upgrade to a computer program the installation or use of which was expressly consented to in accordance with subsections (1) and (2) if the person who gave the consent is entitled to receive the update or upgrade under the terms of the express consent and the update or upgrade is installed in accordance with those terms.
Person considered to expressly consent
(2.5) A person is considered to expressly consent to the installation of a computer program if
(a) the program is
(i) a cookie,
(ii) HTML code,
(iii) Java Scripts,
(iv) an operating system,
(v) any other program that is executable only through the use of another computer program whose installation or use the person has previously expressly consented to, or
(vi) any other program specified in the regulations; and
(b) the person’s conduct is such that it is reasonable to believe that they consent to the program’s installation.
Implied consent — section 6
(3) Consent is implied for the purpose of section 6 only if
(a) the person who sends the message, the person who causes it to be sent or the person who permits it to be sent has an existing business relationship or an existing non-business relationship with the person to whom it is sent;
(b) the person to whom the message is sent has conspicuously published, or has caused to be conspicuously published, the electronic address to which the message is sent, the publication is not accompanied by a statement that the person does not wish to receive unsolicited commercial electronic messages at the electronic address and the message is relevant to the person’s business, role, functions or duties in a business or official capacity;
(c) the person to whom the message is sent has disclosed, to the person who sends the message, the person who causes it to be sent or the person who permits it to be sent, the electronic address to which the message is sent without indicating a wish not to receive unsolicited commercial electronic messages at the electronic address, and the message is relevant to the person’s business, role, functions or duties in a business or official capacity; or
(d) the message is sent in the circumstances set out in the regulations.
Definition of “existing business relationship”
(4) In subsection (3), “existing business relationship” means a business relationship between the person to whom the message is sent and any of the other persons referred to in that subsection — that is, any person who sent or caused or permitted to be sent the message — arising from
(a) the purchase or lease of a product, goods, a service, land or an interest or right in land, within the two-year period immediately preceding the day on which the message was sent, by the person to whom the message is sent from any of those other persons;
(b) the acceptance by the person to whom the message is sent, within the period referred to in paragraph (a), of a business, investment or gaming opportunity offered by any of those other persons;
(c) the bartering of anything mentioned in paragraph (a) between the person to whom the message is sent and any of those other persons within the period referred to in that paragraph;
(d) a written contract entered into between the person to whom the message is sent and any of those other persons in respect of a matter not referred to in any of paragraphs (a) to (c), if the contract is currently in existence or expired within the period referred to in paragraph (a); or
(e) an inquiry or application, within the six-month period immediately preceding the day on which the message was sent, made by the person to whom the message is sent to any of those other persons, in respect of anything mentioned in any of paragraphs (a) to (c).
Clarification
(5) For the purposes of subsection (4), the following organizations are considered to be businesses:
(a) a cooperative as defined in subsection 2(1) of the Canada Cooperatives Act;
(b) a cooperative corporation as defined in section 2 of the Cooperative Credit Associations Act; and
(c) any similar organization incorporated under an Act of Parliament or the legislature of a province.
Clarification
(5.1) If a person has an existing business relationship with another person in accordance with subsection (4), and the business is sold, the person who purchases the business is considered to have, in respect of that business, an existing business relationship with that other person.
Definition of “existing non-business relationship”
(6) In subsection (3), “existing non-business relationship” means a non-business relationship between the person to whom the message is sent and any of the other persons referred to in that subsection — that is, any person who sent or caused or permitted to be sent the message — arising from
(a) a donation or gift made by the person to whom the message is sent to any of those other persons within the two-year period immediately preceding the day on which the message was sent, where that other person is a registered charity as defined in subsection 248(1) of the Income Tax Act, a political party or organization, or a person who is a candidate — as defined in an Act of Parliament or of the legislature of a province — for publicly elected office;
(b) volunteer work performed by the person to whom the message is sent for any of those other persons, or attendance at a meeting organized by that other person, within the two-year period immediately preceding the day on which the message was sent, where that other person is a registered charity as defined in subsection 248(1) of the Income Tax Act, a political party or organization or a person who is a candidate — as defined in an Act of Parliament or of the legislature of a province — for publicly elected office; or
(c) membership, as defined in the regulations, by the person to whom the message is sent, in any of those other persons, within the two-year period immediately preceding the day on which the message was sent, where that other person is a club, association or voluntary organization, as defined in the regulations.
Clarification
(7) Where a period is specified in subsection (4) or (6) in relation to the purchase or lease of a product, goods, a service, land or an interest or right in land, or in relation to a donation, gift or membership,
(a) in the case of a purchase, lease, donation or gift, if it involves an ongoing use or ongoing purchase under a subscription, account, loan or similar relationship, the period is considered to commence on the day that the subscription, account, loan or other relationship terminates; and
(b) in the case of a membership, the period is considered to commence on the day that the membership terminates.
Unsubscribe mechanism — section 6
11. (1) The unsubscribe mechanism referred to in paragraph 6(2)(c) must
(a) enable the person to whom the commercial electronic message is sent to indicate, at no cost to them, the wish to no longer receive any commercial electronic messages, or any specified class of such messages, from the person who sent the message or the person — if different — on whose behalf the message is sent, using
(i) the same electronic means by which the message was sent, or
(ii) if using those means is not practicable, any other electronic means that will enable the person to indicate the wish; and
(b) specify an electronic address, or link to a page on the World Wide Web that can be accessed through a web browser, to which the indication may be sent.
Period of validity of contact information
(2) The person who sends the commercial electronic message and the person — if different — on whose behalf it is sent shall ensure that the electronic address or World Wide Web page referred to in paragraph (1)(b) is valid for a minimum of 60 days after the message has been sent.
Additional requirement
(3) The person who sent the commercial electronic message and the person — if different — on whose behalf the message was sent shall ensure that effect is given to an indication sent in accordance with paragraph (1)(b) without delay, and in any event no later than 10 business days after the indication has been sent, without any further action being required on the part of the person who so indicated.
Withdrawal of consent — section 7
(4) A person who has the express consent of the sender to do any act described in section 7 shall
(a) for the period covered by the consent, ensure that the sender is provided with an electronic address to which they may send notice of the withdrawal of their consent; and
(b) ensure that effect is given to a notice of withdrawal of consent sent in accordance with paragraph (a) without delay, but in any event no later than 10 business days after receiving it.
Withdrawal of consent — section 8
(5) A person who has the express consent of an owner or authorized user to do any act described in section 8 shall
(a) for a period of one year after any computer program that performs one or more of the functions described in subsection 10(2.2) but not referred to in subsection 10(2.3) is installed under the consent, ensure that the person who gave their consent is provided with an electronic address to which they may, if they believe that the function, purpose or impact of the computer program installed under the consent was not accurately described when consent was requested, send a request to remove or disable that computer program; and
(b) if the consent was based on an inaccurate description of the material elements of the function or functions described in subsection 10(2.2) of the computer program, on receipt within that one-year period of a request to remove or disable that computer program, without cost to the person who gave consent, assist that person in removing or disabling the computer program as soon as feasible.
Contravention of section 6
12. (1) A person contravenes section 6 only if a computer system located in Canada is used to send or access the electronic message.
Contravention of section 7
(2) A person contravenes section 7 only if a computer system located in Canada is used to send, route or access the electronic message.
Burden of proof
13. A person who alleges that they have consent to do an act that would otherwise be prohibited under any of sections 6 to 8 has the onus of proving it.
ADMINISTRATIVE MONETARY PENALTIES
Designation
Designated persons
14. For the purposes of any of sections 15 to 46, the Commission may designate persons or classes of persons appointed under section 8 of the Canadian Radio-television and Telecommunications Commission Act to exercise powers in relation to any matter referred to in the designation.
Preservation Demand
Preservation demand
15. (1) A person who is designated for the purpose of this section may cause a demand to be served on a telecommunications service provider requiring it to preserve transmission data that is in, or comes into, its possession or control.
Expiry and revocation
(2) Subject to subsection (5), the demand expires 21 days after the day on which it is served unless, before its expiry, a notice extending the demand for an additional period of 21 days is served on the telecommunications service provider. A demand may not be extended more than once and a notice revoking the demand may be served on the telecommunications service provider at any time.
Purpose of demand
(3) A person who is designated for the purpose of this section may make or extend a demand only for the purpose of
(a) verifying compliance with this Act;
(b) determining whether any of sections 6 to 9 has been contravened; or
(c) assisting an investigation or proceeding in respect of a contravention of the laws of a foreign state that address conduct that is substantially similar to conduct prohibited under any of sections 6 to 9.
Conditions to prevent disclosure
(4) The designated person causing a demand to be served may impose conditions in the demand to prevent the disclosure of some or all of its contents or its existence if they have reasonable grounds to believe that the disclosure would jeopardize the conduct of
(a) an investigation under this Act; or
(b) an investigation or proceeding in respect of a contravention of the laws of a foreign state that address conduct that is substantially similar to conduct prohibited under any of sections 6 to 9.
Expiry and revocation of conditions
(5) A condition imposed to prevent disclosure expires six months after the day on which the demand is served on the telecommunications service provider unless, before its expiry, a notice extending the condition for an additional period of six months is served on the telecommunications service provider. A condition may not be extended more than once and a notice revoking the condition may be served on the telecommunications service provider at any time.
Preservation and destruction of transmission data
(6) A telecommunications service provider that is served with a demand shall
(a) subject to subsections 16(2) and (3), preserve the data until the demand expires or is revoked; and
(b) destroy the data that would not be retained in the normal course of business and any document that is prepared for the purpose of preserving data under this section as soon as the demand expires or is revoked, unless a notice requiring the production of a document based on that data has been served on it under section 17.
Application for review
16. (1) Within five business days after the day on which a demand is served, a telecommunications service provider may apply in writing to the Commission either for a review of the demand on the grounds that preservation of some or all of the data would place an undue burden on it or for a review of the conditions imposed to prevent disclosure.
Powers of Commission
(2) After considering any representations made by the telecommunications service pro- vider and by the person designated for the purposes of section 15, the Commission may allow the application, deny the application or vary the demand, or any condition imposed in it, in any manner that the Commission considers reasonable in the circumstances.
No obligation to preserve new data
(3) If a telecommunications service provider applies for review on the grounds that preservation of some or all of the data would place an undue burden on it and the Commission does not make a decision in respect of that matter within five business days after the day on which the application was made, the telecommunications service provider is not required to preserve any data to which the application relates that comes into the telecommunications service provider’s possession or control after the expiry of the five days.
Notice of decision
(4) The Commission shall cause a copy of its decision to be served on the telecommunications service provider together with a notice of their right to appeal.
Notice to Produce
Notice for production
17. (1) A person who is designated for the purpose of this section may cause a notice to be served on a person requiring them to produce a copy of a document that is in their possession or control, or to prepare a document based on data, information or documents that are in their possession or control and to produce that document.
Purpose of notice
(2) The designated person may issue the notice only for the purpose of
(a) verifying compliance with this Act;
(b) determining whether any of sections 6 to 9 has been contravened; or
(c) assisting an investigation or proceeding in respect of a contravention of the laws of a foreign state that address conduct that is substantially similar to conduct prohibited under any of sections 6 to 9.
Particulars of notice
(3) The notice must require the document to be produced to a person named in the notice within the time, at the place and in the form specified in the notice.
Conditions
(4) The designated person may impose conditions in the notice to prevent the disclosure of some or all of its contents or its existence if they have reasonable grounds to believe that the disclosure would jeopardize the conduct of
(a) an investigation under this Act; or
(b) an investigation or proceeding in respect of a contravention of the laws of a foreign state that address conduct that is substantially similar to conduct prohibited under any of sections 6 to 9.
Expiry and revocation of conditions
(5) A condition imposed to prevent disclosure expires six months after the day on which the notice is served on the person unless, before its expiry, a notice extending the condition for an additional period of six months is served on them. A condition may not be extended more than once and a notice revoking the condition may be served on the person at any time.
Return of documents not required
(6) Documents and copies of documents that are produced under this section need not be returned to the person who produced them.
Application for review
18. (1) At any time before they are required to produce a document, a person may apply in writing to the Commission either for a review of the notice on the grounds that the requirement to prepare or produce a document is unreasonable in the circumstances or that the production would disclose privileged information or for a review of the conditions imposed to prevent disclosure.
No obligation to produce
(2) If a person applies for review on the grounds that the requirement to prepare or produce a document is unreasonable in the circumstances, they are not required to prepare or produce the document.
Powers of Commission
(3) After considering any representations made by the applicant and by the person designated for the purposes of section 17, the Commission may
(a) allow the application;
(b) deny the application; or
(c) vary, in any manner that the Commission considers reasonable in the circumstances,
(i) the requirement to produce, or prepare and produce, a document, or
(ii) any condition imposed in the notice.
Particulars
(4) If the Commission decides to confirm the requirement to produce a document, it shall specify in its decision that the document be produced to a person named in the decision within the time, at the place and in the form set out in the decision.
Notice of decision
(5) The Commission shall cause a copy of its decision to be served on the person together with a notice of their right to appeal.
Warrants
Warrant
19. (1) On an ex parte application, a justice of the peace may issue a warrant authorizing a person who is designated for the purpose of this section and who is named in the warrant to enter a place if the justice is satisfied by information on oath that
(a) entry to the place is necessary to
(i) verify compliance with this Act,
(ii) determine whether any of sections 6 to 9 has been contravened, or
(iii) assist an investigation or proceeding in respect of a contravention of the laws of a foreign state that address conduct that is substantially similar to conduct prohibited under any of sections 6 to 9; and
(b) if the place is a dwelling-house, entry has been refused or there are reasonable grounds to believe that entry will be refused or that consent to entry cannot be obtained from the occupant.
Conditions in warrant
(2) The warrant may contain any conditions that the justice considers appropriate, including conditions to protect privileged information.
Powers in execution of warrant
(3) Subject to the conditions specified in the warrant, in executing the warrant, the designated person may, for any purpose set out in subparagraphs (1)(a)(i) to (iii),
(a) examine anything that is found in the place;
(b) use any means of communication found in the place or cause it to be used;
(c) use any computer system found in the place — or cause it to be used — to examine data contained in, or available to, the system;
(d) prepare a document — or cause it to be prepared — based on the data;
(e) use any copying equipment — or cause it to be used — to make copies of documents;
(f) remove anything found in the place for examination or copying; and
(g) prohibit or limit access to all or part of the place.
Assistance to designated persons
(4) The owner of the place, the person in charge of the place and every person found in the place shall give all assistance that is reasonably required to enable the designated person to execute the warrant and shall provide any documents, data and information — including information establishing their identity — that are reasonably required for that purpose.
Execution of warrant
(5) A warrant must be executed between six o’clock in the morning and nine o’clock in the evening unless the justice authorizes its execution at another time.
Entry onto private property
(6) For the purpose of gaining entry to the place referred to in the warrant issued under subsection (1), the designated person may enter private property and pass through it, and is not liable for doing so. For greater certainty, no person has the right to object to that use of the property and no warrant is required for entry onto the property, other than for entry to a dwelling-house.
Persons accompanying designated person
(7) A person may, at the designated person’s request, accompany the designated person to assist the designated person to gain entry to the place referred to in the warrant and is not liable for doing so.
Use of force
(8) In executing a warrant, a designated person shall not use force unless they are accompanied by a peace officer and the use of force has been specifically authorized in the warrant.
Violations
Violations
20. (1) Every person who contravenes any of sections 6 to 9 commits a violation for which they are liable to an administrative monetary penalty.
Purpose of penalty
(2) The purpose of a penalty is to promote compliance with this Act and not to punish.
Factors for penalty
(3) The following factors must be taken into account when determining the amount of a penalty:
(a) the purpose of the penalty;
(b) the nature and scope of the violation;
(c) the person’s history with respect to any previous violation under this Act, any previous conduct that is reviewable under section 74.011 of the Competition Act and any previous contravention of section 5 of the Personal Information Protection and Elec- tronic Documents Act that relates to a collection or use described in subsection 7.1(2) or (3) of that Act;
(d) the person’s history with respect to any previous undertaking entered into under subsection 21(1) and any previous consent agreement signed under subsection 74.12(1) of the Competition Act that relates to acts or omissions that constitute conduct that is reviewable under section 74.011 of that Act;
(e) any financial benefit that the person obtained from the commission of the violation;
(f) the person’s ability to pay the penalty;
(g) whether the person has voluntarily paid compensation to a person affected by the violation;
(h) the factors established by the regulations; and
(i) any other relevant factor.
Maximum penalties
(4) The maximum penalty for a violation is $1,000,000 in the case of an individual, and $10,000,000 in the case of any other person.
Regulations
(5) The Governor in Council may make regulations
(a) designating provisions whose contravention constitutes a separate violation in respect of each day during which it continues; and
(b) establishing factors for the purposes of paragraph (3)(h).
Undertakings
Entry into undertaking
21. (1) A person may enter into an undertaking at any time.
Contents
(2) An undertaking
(a) must be accepted by a person who is designated for the purpose of this section;
(b) must identify every act or omission committed that constitutes a contravention of any of sections 6 to 9 and that is covered by the undertaking;
(c) must identify every provision at issue;
(d) may contain any conditions that the designated person considers appropriate; and
(e) may include a requirement to pay a specified amount.
Undertaking before notice of violation
(3) If a person enters into an undertaking, no notice of violation may be served on them in connection with an act or omission referred to in the undertaking.
Undertaking after notice of violation
(4) If a person enters into an undertaking after a notice of violation is served on them, the proceeding commenced by the notice of violation is ended in respect of that person in connection with any act or omission referred to in the undertaking.
Notices of Violation
Notice of violation
22. (1) A person who is designated for the purpose of this section may issue a notice of violation and cause it to be served on a person if they believe on reasonable grounds that the person has committed a violation.
Contents of notice
(2) The notice of violation must
(a) name the person believed to have committed the violation;
(b) identify every act or omission for which the notice is served and every provision at issue;
(c) set out the administrative monetary penalty that the person is liable to pay and the time and manner of payment;
(d) inform the person that they may make representations to the Commission within 30 days after the day on which the notice is served or any longer period set out in the notice, and set out the manner for making the representations;
(e) inform the person that, if they do not pay the penalty or make representations in accordance with the notice, they will be deemed to have committed the violation and that the penalty set out in the notice will be imposed; and
(f) inform the person that if they are found or are deemed to have committed a violation they may be made the subject of an order requiring them to do what this Act requires them to do, or forbidding them to do what this Act prohibits them from doing, and that the order can be enforced as an order of a court of competent jurisdiction.
Limitation period
23. (1) No proceeding in respect of a violation may be commenced later than three years after the day on which the subject matter of the proceeding became known to a person designated under section 14.
Certificate
(2) A document that appears to have been issued by the secretary to the Commission, certifying the day on which the subject matter of any proceeding became known to a person designated under section 14, is admissible in evidence without proof of the signature or official character of the person who appears to have signed the document and is proof of the matter asserted in it in the absence of evidence to the contrary.
Determination of Responsibility
Options
24. (1) A person who is served with a notice of violation shall, in accordance with the notice, pay the penalty set out in the notice or make representations with respect to the amount of the penalty or the acts or omissions that constitute the alleged violation.
Deemed violation
(2) A person is deemed to have committed the violation if they either pay the penalty in accordance with the notice of violation or do not pay the penalty and do not make representations, in accordance with the notice of violation.
Representations
25. (1) If a person makes representations in accordance with the notice, the Commission shall decide, on a balance of probabilities, whether the person committed the violation and, if so, may impose the penalty set out in the notice of violation, may reduce or waive the penalty, or may suspend payment of the penalty subject to any conditions that the Commission considers necessary to ensure compliance with this Act.
Notice of decision
(2) The Commission shall cause a copy of its decision to be served on the person together with a notice of their right to appeal.
Restraining orders
26. (1) If a person is deemed under subsection 24(2) to have committed a violation or has been found under subsection 25(1) to have committed a violation, the Commission may make an order directing the person to cease contravening the provision to which the violation relates.
Notice of decision
(2) The Commission shall cause a copy of its order to be served on the person together with a notice of their right to appeal.
Appeal to Federal Court of Appeal
Appeal to Federal Court of Appeal
27. (1) Subject to subsection (2), an appeal may be brought in the Federal Court of Appeal from a decision made under section 16, 18 or 25 or an order made under section 26 within 30 days after the day on which the decision or order, as the case may be, is made.
Appeal on question of fact
(2) An appeal on a question of fact from a decision made under section 16, 18 or 25 or an order made under section 26 may be brought only with the leave of the Federal Court of Appeal, an application for which must be made within 30 days after the day on which the decision or order, as the case may be, is made. The appeal may not be brought later than 30 days after the day on which leave to appeal is granted.
Recovery of Penalties and Other Amounts
Debts due to Her Majesty
28. (1) The following amounts are debts due to Her Majesty in right of Canada that may be recovered in the Federal Court:
(a) the amount payable under an undertaking entered into under subsection 21(1) beginning on the day specified in the undertaking or, if no day is specified, beginning on the day on which the undertaking is entered into;
(b) the amount of the penalty set out in a notice of violation, beginning on the day on which it is required to be paid in accordance with the notice, unless representations are made in accordance with the notice;
(c) if representations are made, either the amount of the penalty that is imposed by the Commission or on appeal, as the case may be, beginning on the day specified by the Commission or the court or, if no day is specified, beginning on the day on which the decision is made; and
(d) the amount of any reasonable expenses incurred in attempting to recover an amount referred to in any of paragraphs (a) to (c).
Limitation period — prescription
(2) A proceeding to recover such a debt may not be commenced later than five years after the day on which the debt becomes payable.
Receiver General
(3) The debt is payable to the Receiver General.
Certificate of default
29. (1) The Commission may issue a certif- icate certifying the unpaid amount of any debt referred to in subsection 28(1).
Effect of registration
(2) Registration of a certificate in the Federal Court has the same effect as a judgment of that Court for a debt of the amount set out in the certificate and all related registration costs.
Rules about Violations
For greater certainty
30. For greater certainty, a violation is not an offence and, accordingly, section 126 of the Criminal Code does not apply.
Directors, officers, etc., of corporations
31. An officer, director, agent or mandatary of a corporation that commits a violation is liable for the violation if they directed, authorized, assented to, acquiesced in or participated in the commission of the violation, whether or not the corporation is proceeded against.
Vicarious liability
32. A person is liable for a violation that is committed by their employee acting within the scope of their employment or their agent or mandatary acting within the scope of their authority, whether or not the employee, agent or mandatary is identified or proceeded against.
Defence
33. (1) A person shall not be found to be liable for a violation if they establish that they exercised due diligence to prevent the commission of the violation.
Common law principles
(2) Every rule and principle of the common law that makes any circumstance a justification or excuse in relation to a charge for an offence applies in respect of a violation to the extent that it is not inconsistent with this Act.
General Provisions
Questions of law and fact
34. (1) The Commission may decide any question of law or of fact in a proceeding under this Act.
Factual findings of court
(2) In deciding a question of fact, the Commission is not bound by the finding or judgment of a court. However, the finding or judgment of a court is admissible in proceedings of the Commission.
Pending proceedings
(3) The power of the Commission to decide a question of fact is not affected by proceedings pending before a court in which the question is in issue.
Judicial powers
35. In a proceeding under this Act, the Commission has the powers of a superior court with respect to the attendance and examination of witnesses and the production and examination of documents or things.
Panels of Commission
36. (1) The Chairperson of the Commission may establish panels to decide any matter on behalf of the Commission in a proceeding under this Act.
Presiding member
(2) If a panel consists of more than one member, the Chairperson shall designate one of the members to preside over the panel.
Decision
(3) A decision of a majority of the members of a panel is a decision of the panel.
Acting after expiry of appointment
(4) A member whose appointment expires may, with the approval of the Chairperson, conclude any proceeding that the member has begun.
Powers of panel
(5) A panel may exercise the powers and perform the duties and functions of the Commission under this Act in relation to any matter before the panel.
Rules of procedure
37. (1) The Commission may make rules respecting the making of applications and representations to the Commission, and the conduct of proceedings held by it, under this Act.
Form and content of demands and notices
(2) The Commission may establish the form and content of demands under section 15, notices to prepare or produce documents under section 17 and notices of violation under section 22.
Evidence
38. A demand under section 15, a notice to prepare or produce documents under section 17, a notice of violation under section 22, a copy of a decision under section 16, 18 or 25 or an order of the Commission under section 26, that appears to have been served is admissible in evidence in a proceeding without proof of the signature or official character of the person who appears to have signed it.
Information may be made public
39. The Commission may make public
(a) the name of a person who enters into an undertaking, the nature of the undertaking including the acts or omissions and provisions at issue, the conditions included in the undertaking and the amount payable under it, if any; or
(b) the name of a person who is deemed, or is found by the Commission or on appeal, to have committed a violation, the acts or omissions and provisions at issue and the amount payable as a result, if any.
Enforcement
40. (1) A demand served under section 15, a notice served under section 17, an undertaking entered into under section 21 and an order of the Commission made under section 26 may be made an order of a court of competent jurisdiction and may be enforced in the same manner as an order of that court as if it had been an order of that court on the date it was served, in the case of a demand, notice or order, or entered into, in the case of an undertaking.
Procedure
(2) The demand, notice, undertaking or order may be made an order of a court of competent jurisdiction by the filing with the registrar of the court of
(a) a copy of the demand certified by a person designated for the purpose of section 15;
(b) a copy of the notice certified by a person designated for the purpose of section 17;
(c) a copy of the undertaking certified by a person designated for the purpose of section 21; or
(d) a copy of the order certified by the secretary to the Commission.
Rescission or variation
(3) On application by a person designated for the purpose of section 21 and a person who has entered into an undertaking that has been filed in a court of competent jurisdiction, that court shall rescind or vary the undertaking if it finds that another undertaking in relation to the same acts or omissions has been entered into by the person.
INJUNCTION
Injunction
41. (1) If, on the application of a person designated for the purpose of this section, a court of competent jurisdiction is satisfied that a person is about to do or is likely to do anything that constitutes or is directed toward the contravention of any of sections 6 to 9, the court may issue an injunction ordering any person named in the application
(a) to refrain from doing anything that, in the opinion of the court, constitutes or is directed toward the contravention of that section; or
(b) to do anything that, in the opinion of the court, may prevent the contravention of that section.
Notice
(2) No injunction may be issued unless 48 hours’ notice is given to every person named in the application or the urgency of the situation is such that service of the notice would not be in the public interest.
OFFENCES
Non-compliance
42. Every person who refuses or fails to comply with a demand made under section 15 or a notice issued under section 17 or who contravenes subsection 19(4) commits an offence.
Obstruction and false information
43. Every person who obstructs or hinders, or knowingly makes a false or misleading statement or provides false or misleading information to, a designated person who is carrying out their duties and functions under this Act commits an offence.
Directors and officers of corporations
44. An officer, director, agent or mandatary of a corporation that commits an offence is a party to and liable for the offence if they directed, authorized, assented to, acquiesced in or participated in the commission of the offence, whether or not the corporation is proceeded against.
Vicarious liability
45. A person is liable for an offence that is committed by their employee acting within the scope of their employment or their agent or mandatary acting within the scope of their authority, whether or not the employee, agent or mandatary is identified or proceeded against.
Offence
46. (1) Every person who commits an offence under section 42 or 43 is guilty of an offence punishable on summary conviction and is liable
(a) to a fine of not more than $10,000 for a first offence or $25,000 for a subsequent offence, in the case of an individual; or
(b) to a fine of not more than $100,000 for a first offence or $250,000 for a subsequent offence, in the case of any other person.
Defence
(2) A person shall not be convicted of an offence under section 42 if they establish that they exercised due diligence to prevent the commission of the offence.
PRIVATE RIGHT OF ACTION
Application
Application
47. (1) A person who alleges that they are affected by an act or omission that constitutes a contravention of any of sections 6 to 9 of this Act or of section 5 of the Personal Information Protection and Electronic Documents Act that relates to a collection or use described in subsection 7.1(2) or (3) of that Act — or that constitutes conduct that is reviewable under section 74.011 of the Competition Act — may apply to a court of competent jurisdiction for an order under section 51 against one or more persons who they allege have committed the act or omission, who they allege are liable for the contravention by reason of section 52 or 53 or who they allege have engaged in the reviewable conduct.
Limitation period
(2) Unless the court decides otherwise, no application may be brought later than three years after the day on which the subject matter of the proceeding became known to the applicant.
Affidavit to accompany application
(3) The application must be accompanied by an affidavit that identifies the alleged contravention or reviewable conduct, sets out every provision, act or omission at issue and any other facts in support of the application and, if the applicant claims that they have suffered an actual loss or damage, or have incurred expenses, as a result of the alleged contravention or reviewable conduct, states the nature and amount of the loss, damage or expenses.
Notice
(4) The applicant shall, without delay, serve a copy of the application on every person against whom an order is sought, on the Commission if the application identifies a contravention of this Act, on the Commissioner of Competition if the application identifies conduct that is reviewable under section 74.011 of the Competition Act and on the Privacy Commissioner if the application identifies a contravention of the Personal Information Protection and Electronic Documents Act.
Limitation
48. (1) The court may not consider an application for an order against a person under paragraph 51(1)(b) that alleges a contravention of any of sections 6 to 9
(a) if the person has entered into an undertaking under subsection 21(1), or has been served with a notice of violation under subsection 22(1), in connection with the act or omission referred to in the application; or
(b) if the person is liable for the contravention by virtue of section 52 or 53 and the corporation, employee, agent or mandatary, as the case may be, who committed the contravention has entered into an undertaking under subsection 21(1), or has been served with a notice of violation under subsection 22(1), in connection with the act or omission referred to in the application.
Certification by Commission
(2) At the written request of a person against whom an order under paragraph 51(1)(b) is sought, the Commission shall, within 10 business days after the day on which the request is made, if it is so satisfied, certify in writing to the court that the person is a person referred to in paragraph (1)(b) and that an undertaking has been entered into, or a notice of violation has been served, in connection with the act or omission referred to in the application for the order. If such a certification is given, the court may not consider the application.
Effect of application
(3) If the court determines that it may consider an application for an order against a person under paragraph 51(1)(b), then, unless the application is discontinued in respect of that person,
(a) no undertaking by the person may be entered into under subsection 21(1), and no notice of violation may be issued to them under subsection 22(1), in connection with an act or omission referred to in an application; and
(b) no undertaking by the corporation, employee, agent or mandatary who committed the contravention may be entered into under subsection 21(1), and no notice of violation may be issued to that corporation, employee, agent or mandatary under subsection 22(1), in connection with an act or omission referred to in an application.
Notice of discontinuance
49. If an application for an order under paragraph 51(1)(b) is discontinued in respect of a person, the applicant shall, without delay, notify everyone who was served with a copy of the application under subsection 47(4) of the discontinuance.
Hearing
Right to intervene
50. The following may intervene in any proceedings in connection with an application under subsection 47(1) for an order under paragraph 51(1)(b) and in any related proceedings:
(a) the Commission, if the application identifies a contravention of this Act;
(b) the Commissioner of Competition, if the application identifies conduct that is reviewable under the Competition Act; and
(c) the Privacy Commissioner, if the application identifies a contravention of the Personal Information Protection and Electronic Documents Act.
Order
51. (1) If, after hearing the application, the court is satisfied that one or more persons have contravened any of the provisions referred to in the application or engaged in conduct that is reviewable under section 74.011 of the Competition Act, the court may order the person or persons, as the case may be, to pay the applicant
(a) compensation in an amount equal to the actual loss or damage suffered or expenses incurred by the applicant; and
(b) a maximum of
(i) in the case of a contravention of section 6, $200 for each contravention of that provision, not exceeding $1,000,000 for each day on which a contravention occurred,
(ii) in the case of a contravention of section 7 or 8, $1,000,000 for each day on which a contravention occurred,
(iii) subject to subparagraphs (iv) and (v), in the case of a contravention of section 9, $1,000,000 for each contravention of that provision,
(iv) in the case of a contravention of section 9 resulting from procuring, or causing to be procured, the doing of an act contrary to section 6, and if a contravention of section 6 has resulted, $200 for each such contravention of section 6, not exceeding $1,000,000 for each day on which a contravention of section 6 occurred,
(v) in the case of a contravention of section 9 resulting from procuring, or causing to be procured, the doing of an act contrary to section 7 or 8, and if a contravention of either of those sections has resulted, $1,000,000 for each day on which a contravention of section 7 or 8, as the case may be, occurred,
(vi) in the case of a contravention of section 5 of the Personal Information Protection and Electronic Documents Act, $200 for each contravention of that provision, not exceeding $1,000,000 for each day on which a contravention occurred, and
(vii) in the case of conduct that is reviewable under section 74.011 of the Competition Act, $200 for each occurrence of the conduct, not exceeding $1,000,000 for each day on which the conduct occurred.
Purpose of order
(1.1) The purpose of an order under paragraph (1)(b) is to promote compliance with this Act and not to punish.
Factors to be considered
(2) The court shall consider the following factors when it determines the amount payable under paragraph (1)(b) for each contravention or each occurrence of the reviewable conduct:
(a) the purpose of the order;
(a.1) the nature and scope of the contravention;
(b) the person’s history, or each person’s history, as the case may be, with respect to any previous contravention of this Act and of section 5 of the Personal Information Protection and Electronic Documents Act that relates to a collection or use described in subsection 7.1(2) or (3) of that Act and of conduct that is reviewable under section 74.011 of the Competition Act;
(c) the person’s history, or each person’s history, as the case may be, with respect to any previous undertaking entered into under subsection 21(1) and any previous consent agreement signed under subsection 74.12(1) of the Competition Act that relates to acts or omissions that constitute conduct that is reviewable under section 74.011 of that Act;
(d) any financial benefit that the person or persons obtained from the commission of the contravention or from engaging in the reviewable conduct;
(e) the person’s or persons’ ability to pay the total amount payable;
(f) whether the applicant has received compensation in connection with the contravention or the reviewable conduct;
(g) the factors established by the regulations; and
(h) any other relevant factor.
Rules about Contraventions
Directors and officers of corporations
52. An officer, director, agent or mandatary of a corporation that commits a contravention of any of sections 6 to 9 is a party to and liable for the contravention if they directed, authorized, assented to, acquiesced in or participated in the commission of the contravention, whether or not the corporation is proceeded against.
Vicarious liability
53. A person is liable for a contravention of any of sections 6 to 9 that is committed by their employee acting within the scope of their employment or their agent or mandatary acting within the scope of their authority, whether or not the employee, agent or mandatary is identified or proceeded against.
Defence
54. (1) A person shall not be found to have committed a contravention of any of sections 6 to 9 if they establish that they exercised due diligence to prevent the commission of the contravention.
Common law principles
(2) Every rule and principle of the common law that makes any circumstance a justification or excuse in relation to a charge for an offence applies in respect of a contravention of any of sections 6 to 9 to the extent that it is not inconsistent with this Act.
Liability
55. If more than one person is determined by the court under subsection 51(1) to have contravened any of the provisions referred to in an application under subsection 47(1) or to have engaged in conduct that is reviewable under section 74.011 of the Competition Act, those persons are jointly and severally, or solidarily, liable for the payment of the amounts ordered to be paid under subsection 51(1) in respect of the contravention or the reviewable conduct.
CONSULTATION AND DISCLOSURE OF INFORMATION
Disclosure by an organization
56. Despite subsection 7(3) of the Personal Information Protection and Electronic Documents Act, any organization to which Part 1 of that Act applies may on its own initiative disclose to the Commission, the Commissioner of Competition or the Privacy Commissioner any information in its possession that it believes relates to
(a) a contravention of
(i) any of sections 6 to 9,
(ii) section 52.01 of the Competition Act or, in respect of conduct carried out by electronic means, section 52, 52.1, 53, 55 or 55.1 of that Act,
(iii) section 5 of the Personal Information Protection and Electronic Documents Act, which contravention relates to a collection or use described in subsection 7.1(2) or (3) of that Act, or
(iv) any prohibition or requirement of the Commission, in respect of conduct carried out by electronic means, under section 41 of the Telecommunications Act; or
(b) conduct that is reviewable under section 74.011 of the Competition Act or, in respect of conduct carried out by electronic means, under section 74.01, 74.02, 74.04, 74.05 or 74.06 of that Act.
Consultation
57. The Commission, the Commissioner of Competition and the Privacy Commissioner shall consult with each other to the extent that they consider appropriate to ensure the effective regulation, under this Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act, of commercial conduct that discourages the use of electronic means to carry out commercial activities, and to coordinate their activities under those Acts as they relate to the regulation of that type of conduct.
Disclosure by Commission
58. (1) The Commission may disclose information obtained by it in the performance or exercise of its duties or powers related to any of sections 6 to 9 of this Act and, in respect of conduct carried out by electronic means, to section 41 of the Telecommunications Act,
(a) to the Privacy Commissioner, if the Commission believes that the information relates to the performance or exercise of the Privacy Commissioner’s duties or powers under Part 1 of the Personal Information Protection and Electronic Documents Act in respect of a collection or use described in subsection 7.1(2) or (3) of that Act; and
(b) to the Commissioner of Competition, if the Commission believes that the information relates to the performance or exercise of the Commissioner of Competition’s duties or powers related to section 52.01 or 74.011 of the Competition Act or, in respect of conduct carried out by electronic means, to section 52, 52.1, 53, 55, 55.1, 74.01, 74.02, 74.04, 74.05 or 74.06 of that Act.
Disclosure by Commissioner of Competition
(2) Despite section 29 of the Competition Act, the Commissioner of Competition may disclose information obtained by him or her in the performance or exercise of his or her duties or powers related to section 52.01 or 74.011 of that Act or, in respect of conduct carried out by electronic means, to section 52, 52.1, 53, 55, 55.1, 74.01, 74.02, 74.04, 74.05 or 74.06 of that Act,
(a) to the Privacy Commissioner, if the Commissioner of Competition believes that the information relates to the performance or exercise of the Privacy Commissioner’s duties or powers under Part 1 of the Personal Information Protection and Electronic Documents Act in respect of a collection or use described in subsection 7.1(2) or (3) of that Act; and
(b) to the Commission, if the Commissioner of Competition believes that the information relates to the administration of any of sections 6 to 9 of this Act or, in respect of conduct carried out by electronic means, of section 41 of the Telecommunications Act.
Disclosure by Privacy Commissioner
(3) The Privacy Commissioner may disclose information obtained by him or her in the performance or exercise of his or her duties or powers under Part 1 of the Personal Information Protection and Electronic Documents Act if the information relates to a collection or use described in subsection 7.1(2) or (3) of that Act or to an act alleged in a complaint in respect of which the Privacy Commissioner decides, under subsection 12(2) or 12.2(2) of that Act, to not conduct an investigation or to discontinue an investigation,
(a) to the Commissioner of Competition, if the Privacy Commissioner believes that the information relates to the performance or exercise of the Commissioner of Competition’s duties or powers related to section 52.01 or 74.011 of the Competition Act or, in respect of conduct carried out by electronic means, to section 52, 52.1, 53, 55, 55.1, 74.01, 74.02, 74.04, 74.05 or 74.06 of that Act; and
(b) to the Commission, if the Privacy Commissioner believes that the information relates to the administration of any of sections 6 to 9 of this Act or, in respect of conduct carried out by electronic means, of section 41 of the Telecommunications Act.
Use of information by Commission
59. (1) The Commission may use the information that is disclosed to it under paragraph 58(2)(b) or (3)(b) only for the purpose of the administration of any of sections 6 to 9 of this Act or, in respect of conduct carried out by electronic means, of section 41 of the Telecommunications Act.
Use of information by Commissioner of Competition
(2) The Commissioner of Competition may use the information that is disclosed to him or her under paragraph 58(1)(b) or (3)(a) only for the purpose of the performance or exercise of the Commissioner’s duties or powers related to section 52.01 or 74.011 of the Competition Act or, in respect of conduct carried out by electronic means, to section 52, 52.1, 53, 55, 55.1, 74.01, 74.02, 74.04, 74.05 or 74.06 of that Act.
Use of information by Privacy Commissioner
(3) The Privacy Commissioner may use the information that is disclosed to him or her under paragraph 58(1)(a) or (2)(a) only for the purpose of performing or exercising his or her duties or powers under Part 1 of the Personal Information Protection and Electronic Documents Act in respect of a collection or use described in subsection 7.1(2) or (3) of that Act.
Information shared with the government of a foreign state, etc.
60. (1) Information may be disclosed under an agreement or arrangement in writing between the Government of Canada, the Commission, the Commissioner of Competition or the Privacy Commissioner and the government of a foreign state, an international organization of states or an international organization established by the governments of states, or any institution of any such government or organization, if the person responsible for disclosing the information believes that
(a) the information may be relevant to an investigation or proceeding in respect of a contravention of the laws of a foreign state that address conduct that is substantially similar to
(i) conduct prohibited
(A) under any of sections 6 to 9, or
(B) under section 52.01 of the Competition Act or, in respect of conduct carried out by electronic means, under section 52, 52.1, 53, 55 or 55.1 of that Act,
(ii) conduct that contravenes section 5 of the Personal Information Protection and Electronic Documents Act and that relates to a collection or use described in subsection 7.1(2) or (3) of that Act,
(iii) conduct that is reviewable under section 74.011 of the Competition Act or, in respect of conduct carried out by electronic means, under section 74.01, 74.02, 74.04, 74.05 or 74.06 of that Act, or
(iv) conduct that contravenes any prohibition or requirement of the Commission, in respect of conduct carried out by electronic means, under section 41 of the Telecommunications Act; or
(b) the disclosure is necessary in order to obtain from that foreign state, organization or institution information that may be relevant for any of the following purposes and no more information will be disclosed than is required for that purpose:
(i) the administration of any of sections 6 to 9,
(ii) the performance or exercise by the Commissioner of Competition of his or her duties or powers related to section 52.01 or 74.011 of the Competition Act or, in respect of conduct carried out by electronic means, to section 52, 52.1, 53, 55, 55.1, 74.01, 74.02, 74.04, 74.05 or 74.06 of that Act,
(iii) the performance or exercise by the Privacy Commissioner of his or her duties or powers under Part 1 of the Personal Information Protection and Electronic Documents Act in respect of a collection or use described in subsection 7.1(2) or (3) of that Act, or
(iv) the administration, in respect of conduct carried out by electronic means, of section 41 of the Telecommunications Act.
Restriction on use
(2) An agreement or arrangement referred to in subsection (1) must
(a) restrict the use of the information to purposes relevant to an investigation or proceeding in respect of a contravention of the laws of the foreign state that address conduct referred to in any of subparagraphs (1)(a)(i) to (iv); and
(b) stipulate that the information be treated in a confidential manner and not be further disclosed without the express consent of the person responsible for disclosing the information.
Restriction — arrangements
(2.1) An arrangement referred to in subsection (1) entered into by the Commission or the Privacy Commissioner may be in respect only of contraventions of the laws of a foreign state that have consequences that would not be considered penal under Canadian law.
Limitation
(3) The only information that may be disclosed under subsection (1) is information
(a) obtained in the course of assisting an investigation or proceeding in respect of a contravention of the laws of a foreign state that address conduct that is substantially similar to conduct referred to in any of subparagraphs (1)(a)(i) to (iv); or
(b) obtained in the course of the activities described in any of subparagraphs (1)(b)(i) to (iv).
Clarification
(4) For the purposes of this section, an arrangement may be created by the acceptance, by the Government of Canada, the Commission, the Commissioner of Competition or the Privacy Commissioner, of a written request for assistance from the government of a foreign state, an international organization of states or an international organization established by the governments of states, or any institution of any such government or organization, if the request is accompanied by a declaration that the party making the request will provide assistance to the party to whom the request is made on a reciprocal basis.
Reports to Minister of Industry
60.1 The Commission, the Commissioner of Competition and the Privacy Commissioner shall provide the Minister of Industry with any reports that he or she requests for the purpose of coordinating the implementation of sections 6 to 9 of this Act, sections 52.01 and 74.011 of the Competition Act and section 7.1 of the Personal Information Protection and Electronic Documents Act.
GENERAL
Mandate
61. The Commission is responsible for the administration of sections 6 to 46.
Appointment of experts, etc.
62. (1) The Commission may, with the approval of the Governor in Council, engage experts or other persons to assist the Commission in any matter.
Remuneration
(2) The experts and other persons engaged by the Commission shall be paid the remuneration, and are entitled to be paid the travel and living expenses incurred in providing assistance to the Commission, as may be fixed by the Governor in Council.
Remuneration and expenses payable out of appropriations
(3) The remuneration and expenses of the experts and other persons engaged by the Commission shall be paid out of money appropriated by Parliament to defray the cost of administering this Act.
Regulations — Governor in Council
63. (1) The Governor in Council may make regulations
(a) specifying the circumstances in which consent is deemed to have been withdrawn for the purposes of section 6;
(b) defining “personal relationship” and “family relationship” for the purposes of paragraph 6(5)(a);
(c) specifying classes of commercial elec- tronic messages, or circumstances in which such messages are sent, for the purposes of paragraph 6(5)(c);
(c.1) specifying purposes of electronic messages for the purposes of paragraph 6(5.1)(g);
(c.2) specifying the use that may be made of a consent and the conditions on which a consent may be used for the purposes of paragraph 10(1.1)(b);
(c.3) specifying functions for the purposes of paragraph 10(2.2)(g);
(c.4) specifying operations for the purposes of subsection 10(2.3);
(c.5) specifying programs for the purposes of subparagraph 10(2.5)(a)(vi);
(d) specifying the circumstances mentioned in subsection 10(3) in which consent may be implied;
(e) defining “membership”, “club”, “association” and “voluntary organization” for the purposes of subsection 10(6);
(f) designating provisions whose contravention constitutes a separate contravention in respect of each day during which it continues;
(g) establishing additional factors to be taken into account in determining the amount payable under paragraph 51(1)(b) for each contravention of any of sections 6 to 9; and
(h) generally, for carrying out the purposes and provisions of this Act.
Regulations — Commission
(2) The Commission may make regulations
(a) respecting the form of a request for consent for the purposes of subsections 10(1) and (2);
(b) respecting undertakings under subsection 21(1);
(c) respecting the service of documents required or authorized to be served under this Act including the manner and proof of service and the circumstances under which documents are to be considered to be served; and
(d) prescribing anything that is to be prescribed under this Act.
Review of Act by Parliamentary committee
63.1 Three years after this Act comes into force, a review of the provisions and operation of this Act shall be undertaken by any committee of the Senate, of the House of Commons or of both Houses of Parliament that is designated or established for that purpose.
TRANSITIONAL PROVISIONS
Existing business or non-business relationships
63.2 A person’s consent to receiving commercial electronic messages from another person is implied until the person gives notification that they no longer consent to receiving such messages from that other person or until three years after the day on which section 6 comes into force, whichever is earlier, if, when that section comes into force,
(a) those persons have an existing business relationship or an existing non-business relationship, as defined in subsection 10(4) or (6), respectively, without regard to the period mentioned in that subsection; and
(b) the relationship includes the communication between them of commercial electronic messages.
Software updates and upgrades
63.3 If a computer program was installed on a person’s computer before section 8 comes into force, the person’s consent to the installation of an update or upgrade to the program is implied until the person gives notification that they no longer consent to receiving such an installation or until three years after the day on which section 8 comes into force, whichever is earlier.
AMENDMENT TO THIS ACT
64. Subsection 6(7) of this Act is repealed.
R.S., c. C-22
AMENDMENT TO THE CANADIAN RADIO-TELEVISION AND TELECOMMUNICATIONS COMMISSION ACT
1993, c. 38, s. 85; 2001, c. 34, s. 31(E)
65. Subsection 12(2) of the Canadian Radio-television and Telecommunications Commission Act is replaced by the following:
Telecommunications
(2) The full-time members of the Commission and the Chairperson shall exercise the powers and perform the duties vested in the Commission and the Chairperson, respectively, by the Telecommunications Act or any special Act, as defined in subsection 2(1) of that Act, or by the Electronic Commerce Protection Act.
R.S., c. C-34; R.S., c. 19 (2nd Supp.), s. 19
AMENDMENTS TO THE COMPETITION ACT
R.S., c. 19 (2nd Supp.), s. 20(3)
66. (1) The definition “record” in subsection 2(1) of the Competition Act is replaced by the following:
“record”
« document »
« document »
“record” means any information that is recorded on any medium and that is capable of being understood by a person or read by a computer system or other device;
(2) Subsection 2(1) of the Act is amended by adding the following in alphabetical order:
“computer system”
« ordinateur »
« ordinateur »
“computer system” has the same meaning as in subsection 342.1(2) of the Criminal Code;
“data”
« données »
« données »
“data”, other than in Part III, means signs, signals, symbols or concepts that are being prepared or have been prepared in a form suitable for use in a computer system;
“electronic message”
« message électronique »
« message électronique »
“electronic message” means a message sent by any means of telecommunication, including a text, sound, voice or image message;
“information”
« renseignement »
« renseignement »
“information” includes data;
“locator”
« localisateur »
« localisateur »
“locator” means a name or information used to identify a source of data on a computer system, and includes a URL;
“sender information”
« renseignements sur l’expéditeur »
« renseignements sur l’expéditeur »
“sender information” means the part of an electronic message — including the data relating to source, routing, addressing or signalling — that identifies or purports to identify the sender or the origin of the message;
“subject matter information”
« objet »
« objet »
“subject matter information” means the part of an electronic message that purports to summarize the contents of the message or to give an indication of them;
R.S., c. 19 (2nd Supp.), s. 24
67. Subsection 16(6) of the Act is repealed.
R.S., c. 19 (2nd Supp.), s. 24
68. Subsection 20(2) of the Act is replaced by the following:
Copies
(2) Copies of any records referred to in subsection (1), made by any process of reproduction, on proof orally or by affidavit that they are true copies, are admissible in evidence in any proceedings under this Act and have the same probative force as the original.
1999, c. 2, s. 10; 2002, c. 16, s. 5
69. Subsections 33(1) to (7) of the Act are replaced by the following:
Interim injunction
33. (1) On application by or on behalf of the Attorney General of Canada or the attorney general of a province, a court may issue an interim injunction forbidding any person named in the application from doing any act or thing that it appears to the court could constitute or be directed toward the commission of an offence under Part VI — other than an offence under section 52 involving the use of any means of telecommunication or an offence under section 52.01, 52.1 or 53 — or under section 66, pending the commencement or completion of a proceeding under subsection 34(2) or a prosecution against the person, if it appears to the court that
(a) the person has done, is about to do or is likely to do any act or thing constituting or directed toward the commission of the offence; and
(b) if the offence is committed or continued,
(i) injury to competition that cannot adequately be remedied under any other provision of this Act will result, or
(ii) serious harm is likely to ensue unless the injunction is issued and the balance of convenience favours issuing the injunction.
Injunction — offences involving telecommunication
(1.1) On application by or on behalf of the Attorney General of Canada or the attorney general of a province, a court may issue an injunction forbidding any person named in the application from doing any act or thing that it appears to the court could constitute or be directed toward the commission of an offence under section 52 involving the use of any means of telecommunication or an offence under section 52.01, 52.1 or 53, if it appears to the court that
(a) the person has done, is about to do or is likely to do any act or thing constituting or directed toward the commission of the offence;
(b) if the offence is committed or continued, serious harm is likely to ensue unless the injunction is issued; and
(c) the balance of convenience favours issuing the injunction.
Injunction against third parties — offences involving telecommunication
(1.2) On application by or on behalf of the Attorney General of Canada or the attorney general of a province, a court may issue an injunction ordering any person named in the application to refrain from supplying to another person a product that it appears to the court is or is likely to be used to commit or continue an offence under section 52 involving the use of any means of telecommunication or an offence under section 52.01, 52.1 or 53, or to do any act or thing that it appears to the court could prevent the commission or continuation of such an offence, if it appears to the court that
(a) a person has done, is about to do or is likely to do any act or thing constituting or directed toward the commission of the offence;
(b) if the offence is committed or continued, serious harm is likely to ensue unless the injunction is issued; and
(c) the balance of convenience favours issuing the injunction.
Notice of application
(2) Subject to subsection (3), at least 48 hours’ notice of an application for an injunction under subsection (1), (1.1) or (1.2) shall be given by or on behalf of the Attorney General of Canada or the attorney general of a province, as the case may be, to each person against whom the injunction is sought.
Ex parte application
(3) If a court to which an application is made under subsection (1), (1.1) or (1.2) is satisfied that subsection (2) cannot reasonably be complied with, or that the urgency of the situation is such that service of notice in accordance with subsection (2) would not be in the public interest, it may proceed with the application ex parte but any injunction issued under subsection (1), (1.1) or (1.2) by the court on ex parte application has effect only for the period, not exceeding 10 days, that is specified in the order.
Terms of injunction
(4) An injunction issued under subsection (1), (1.1) or (1.2)
(a) shall be in the terms that the court that issues it considers necessary and sufficient to meet the circumstances of the case; and
(b) subject to subsection (3), has effect for the period that is specified in the order.
Extension or cancellation of injunction
(5) On application by or on behalf of the Attorney General of Canada or the attorney general of a province, as the case may be, or by or on behalf of any person to whom the injunction is directed, on at least 48 hours’ notice of the application to all other parties to the injunction, a court that issues an injunction under subsection (1), (1.1) or (1.2) may, by order,
(a) despite subsections (3) and (4), continue the injunction, with or without modification, for any definite period that is specified in the order; or
(b) revoke the injunction.
Duty of applicant
(6) If an injunction is issued under subsection (1), (1.1) or (1.2), the Attorney General of Canada or the attorney general of a province, as the case may be, shall proceed as expeditiously as possible to institute and conclude any prosecution or proceedings arising out of the acts or things on the basis of which the injunction was issued.
Punishment for disobedience
(7) A court may punish any person who contravenes an injunction issued by it under subsection (1), (1.1) or (1.2) by a fine in the discretion of the court or by imprisonment for a term not exceeding two years.
1999, c. 2, s. 12(1)
70. (1) Subsection 52(1.2) of the Act is replaced by the following:
Permitted representations
(1.2) For greater certainty, in this section and in sections 52.01, 52.1, 74.01, 74.011 and 74.02, the making or sending of a representation includes permitting a representation to be made or sent.
1999, c. 2, s. 12(1)
(2) Paragraph 52(2)(d) of the Act is replaced by the following:
(d) made in the course of in-store or door-to-door selling to a person as ultimate user, or by communicating orally by any means of telecommunication to a person as ultimate user, or
71. The Act is amended by adding the following after section 52:
False or misleading representation — sender or subject matter information
52.01 (1) No person shall, for the purpose of promoting, directly or indirectly, any business interest or the supply or use of a product, knowingly or recklessly send or cause to be sent a false or misleading representation in the sender information or subject matter information of an electronic message.
False or misleading representation — electronic message
(2) No person shall, for the purpose of promoting, directly or indirectly, any business interest or the supply or use of a product, knowingly or recklessly send or cause to be sent in an electronic message a representation that is false or misleading in a material respect.
False or misleading representation — locator
(3) No person shall, for the purpose of promoting, directly or indirectly, any business interest or the supply or use of a product, knowingly or recklessly make or cause to be made a false or misleading representation in a locator.
Proof of deception not required
(4) For greater certainty, in establishing that any of subsections (1) to (3) was contravened, it is not necessary to prove that any person was deceived or misled.
General impression to be considered
(5) In a prosecution for a contravention of any of subsections (1) to (3), the general impression conveyed by a representation as well as its literal meaning are to be taken into account.
Offence and punishment
(6) Any person who contravenes any of subsections (1) to (3) is guilty of an offence and
(a) liable on conviction on indictment to a fine in the discretion of the court or to imprisonment for a term not exceeding 14 years, or to both; or
(b) liable on summary conviction to a fine not exceeding $200,000 or to imprisonment for a term not exceeding one year, or to both.
Reviewable conduct
(7) Nothing in Part VII.1 is to be read as excluding the application of this section to the making of a representation that constitutes reviewable conduct within the meaning of that Part.
Where application made under Part VII.1
(8) No proceedings may be commenced under this section against a person on the basis of facts that are the same or substantially the same as the facts on the basis of which an order against that person is sought under Part VII.1.
Interpretation
(9) For the purposes of this section,
(a) an electronic message is considered to have been sent once its transmission has been initiated; and
(b) it is immaterial whether the electronic address to which an electronic message is sent exists or whether an electronic message reaches its intended destination.
Assisting foreign states
52.02 (1) The Commissioner may, for the purpose of assisting an investigation or proceeding in respect of the laws of a foreign state, an international organization of states or an international organization established by the governments of states that address conduct that is substantially similar to conduct prohibited under section 52, 52.01, 52.1, 53, 55 or 55.1,
(a) conduct any investigation that the Commissioner considers necessary to collect relevant information, using any powers that the Commissioner may use under this Act or the Criminal Code to investigate an offence under any of those sections; and
(b) disclose the information to the government of the foreign state or to the international organization, or to any institution of any such government or organization responsible for conducting investigations or initiating proceedings in respect of the laws in respect of which the assistance is being provided, if the government, organization or institution declares in writing that
(i) the use of the information will be restricted to purposes relevant to the investigation or proceeding, and
(ii) the information will be treated in a confidential manner and, except for the purposes mentioned in subparagraph (i), will not be further disclosed without the Commissioner’s express consent.
Mutual assistance
(2) In deciding whether to provide assistance under subsection (1), the Commissioner shall consider whether the government, organization or institution agrees to provide assistance for investigations or proceedings in respect of any of the sections mentioned in subsection (1).
1999, c. 2, s. 13
72. (1) Subsection 52.1(1) of the Act is replaced by the following:
Definition of “telemarketing”
52.1 (1) In this section, “telemarketing” means the practice of communicating orally by any means of telecommunication for the purpose of promoting, directly or indirectly, any business interest or the supply or use of a product.
1999, c. 2, s. 13
(2) Paragraph 52.1(2)(a) of the Act is replaced by the following:
(a) disclosure is made, in a fair and reasonable manner at the beginning of each communication, of the identity of the person on behalf of whom the communication is made, the nature of the business interest or product being promoted and the purposes of the communication;
1999, c. 2, s. 13
(3) Subsection 52.1(5) of the Act is replaced by the following:
Time of disclosure
(5) The disclosure of information referred to in paragraph (2)(b) or (c) or (3)(b) or (c) must be made during the course of a communication unless it is established by the accused that the information was disclosed within a reasonable time before the communication, by any means, and the information was not requested during the communication.
73. The Act is amended by adding the following after section 74.01:
False or misleading representation — sender or subject matter information
74.011 (1) A person engages in reviewable conduct who, for the purpose of promoting, directly or indirectly, any business interest or the supply or use of a product, sends or causes to be sent a false or misleading representation in the sender information or subject matter information of an electronic message.
False or misleading representation — electronic message
(2) A person engages in reviewable conduct who, for the purpose of promoting, directly or indirectly, any business interest or the supply or use of a product, sends or causes to be sent in an electronic message a representation that is false or misleading in a material respect.
False or misleading representation — locator
(3) A person engages in reviewable conduct who, for the purpose of promoting, directly or indirectly, any business interest or the supply or use of a product, makes or causes to be made a false or misleading representation in a locator.
General impression to be considered
(4) In proceedings under this section, the general impression conveyed by a representation as well as its literal meaning shall be taken into account in determining whether or not the person who made the representation engaged in the reviewable conduct.
Interpretation
(5) For the purposes of this section,
(a) an electronic message is considered to have been sent once its transmission has been initiated; and
(b) it is immaterial whether the electronic address to which an electronic message is sent exists or whether an electronic message reaches its intended destination.
Assisting foreign states
74.012 (1) The Commissioner may, for the purpose of assisting an investigation or proceeding in respect of the laws of a foreign state, an international organization of states or an international organization established by the governments of states that address conduct that is substantially similar to conduct that is reviewable under section 74.01, 74.011, 74.02, 74.04, 74.05 or 74.06,
(a) conduct any investigation that the Commissioner considers necessary to collect relevant information, using any powers that the Commissioner may use under this Act to investigate conduct that is reviewable under any of those sections; and
(b) disclose the information to the government of the foreign state or to the international organization, or to any institution of any such government or organization responsible for conducting investigations or initiating proceedings in respect of the laws in respect of which the assistance is being provided, if the government, organization or institution declares in writing that
(i) the use of the information will be restricted to purposes relevant to the investigation or proceeding, and
(ii) the information will be treated in a confidential manner and, except for the purposes mentioned in subparagraph (i), will not be further disclosed without the Commissioner’s express consent.
Limitation
(2) Subsection (1) does not apply if the contravention of the laws of the foreign state has consequences that would be considered penal under Canadian law.
Mutual assistance
(3) In deciding whether to provide assistance under subsection (1), the Commissioner shall consider whether the government, organization or institution agrees to provide assistance for investigations or proceedings in respect of any of the sections mentioned in subsection (1).
1999, c. 2, s. 22
74. Paragraph 74.03(1)(d) of the Act is replaced by the following:
(d) made in the course of in-store or door-to-door selling to a person as ultimate user, or by communicating orally by any means of telecommunication to a person as ultimate user, or
75. The Act is amended by adding the following after section 74.1:
Deduction from administrative monetary penalty
74.101 (1) If a court determines that a person is engaging in or has engaged in conduct that is reviewable under section 74.011 and orders the person to pay an administrative monetary penalty under paragraph 74.1(1)(c), then the court shall deduct from the amount of the penalty that it determines any amount that the person
(a) has been ordered to pay under paragraph 51(1)(b) of the Electronic Commerce Protection Act in respect of the same conduct; or
(b) has agreed in a settlement agreement to pay on account of amounts referred to in paragraph 51(1)(b) of that Act in respect of the same conduct.
Restitution and interim injunction
(2) If a court determines that a person is engaging in or has engaged in conduct that is reviewable under subsection 74.011(2), it may order the person to pay an amount under paragraph 74.1(1)(d), and may issue an interim injunction under section 74.111, as if the conduct were conduct that is reviewable under paragraph 74.01(1)(a).
1999, c. 2, s. 22; 2002, c. 16, s. 10(1)
76. Subsections 74.11(1) to (4) of the Act are replaced by the following:
Temporary order
74.11 (1) On application by the Commissioner, a court may order a person who it appears to the court is engaging in conduct that is reviewable under this Part not to engage in that conduct or substantially similar reviewable conduct if it appears to the court that
(a) serious harm is likely to ensue unless the order is issued; and
(b) the balance of convenience favours issuing the order.
Temporary order — supply of a product
(1.1) On application by the Commissioner, a court may order any person named in the application to refrain from supplying to another person a product that it appears to the court is or is likely to be used to engage in conduct that is reviewable under this Part, or to do any act or thing that it appears to the court could prevent a person from engaging in such conduct, if it appears to the court that
(a) serious harm is likely to ensue unless the order is issued; and
(b) the balance of convenience favours issuing the order.
Duration
(2) Subject to subsection (5), an order made under subsection (1) or (1.1) has effect, or may be extended on application by the Commissioner, for any period that the court considers sufficient to meet the circumstances of the case.
Notice of application
(3) Subject to subsection (4), at least 48 hours’ notice of an application referred to in subsection (1), (1.1) or (2) shall be given by or on behalf of the Commissioner to the person in respect of whom the order or extension is sought.
Ex parte application
(4) The court may proceed ex parte with an application made under subsection (1) or (1.1) if it is satisfied that subsection (3) cannot reasonably be complied with or that the urgency of the situation is such that service of notice in accordance with subsection (3) would not be in the public interest.
1999, c. 2, s. 22
77. Section 74.16 of the Act is replaced by the following:
Where proceedings commenced under section 52 or 52.01
74.16 No application may be made under this Part against a person on the basis of facts that are the same or substantially the same as the facts on the basis of which proceedings have been commenced against that person under section 52 or 52.01.
2000, c. 5
AMENDMENTS TO THE PERSONAL INFORMATION PROTECTION AND ELECTRONIC DOCUMENTS ACT
78. The Personal Information Protection and Electronic Documents Act is amended by adding the following after section 7:
Definitions
7.1 (1) The following definitions apply in this section.
“access”
« utiliser »
« utiliser »
“access” means to program, to execute programs on, to communicate with, to store data in, to retrieve data from, or to otherwise make use of any resources, including data or programs on a computer system or a computer network.
“computer program”
« programme d’ordinateur »
« programme d’ordinateur »
“computer program” has the same meaning as in subsection 342.1(2) of the Criminal Code.
“computer system”
« ordinateur »
« ordinateur »
“computer system” has the same meaning as in subsection 342.1(2) of the Criminal Code.
“electronic address”
« adresse électronique »
« adresse électronique »
“electronic address” means an address used in connection with
(a) an electronic mail account;
(b) an instant messaging account; or
(c) any similar account.
Collection of electronic addresses, etc.
(2) Paragraphs 7(1)(a), (c) and (d) and (2)(a) to (c.1) and the exception set out in clause 4.3 of Schedule 1 do not apply in respect of
(a) the collection of an individual’s electron- ic address, if the address is collected by the use of a computer program that is designed or marketed primarily for use in generating or searching for, and collecting, electronic addresses; or
(b) the use of an individual’s electronic address, if the address is collected by the use of a computer program described in paragraph (a).
Accessing a computer system to collect personal information, etc.
(3) Paragraphs 7(1)(a) to (d) and (2)(a) to (c.1) and the exception set out in clause 4.3 of Schedule 1 do not apply in respect of
(a) the collection of personal information, through any means of telecommunication, if the collection is made by accessing a computer system or causing a computer system to be accessed without authorization; or
(b) the use of personal information that is collected in a manner described in paragraph (a).
79. Section 12 of the Act is replaced by the following:
Examination of complaint by Commissioner
12. (1) The Commissioner shall conduct an investigation in respect of a complaint, unless the Commissioner is of the opinion that
(a) the complainant ought first to exhaust grievance or review procedures otherwise reasonably available;
(b) the complaint could more appropriately be dealt with, initially or completely, by means of a procedure provided for under the laws of Canada, other than this Part, or the laws of a province; or
(c) the complaint was not filed within a reasonable period from the date when the subject matter of the complaint arose.
Exception
(2) Despite subsection (1), the Commissioner is not required to conduct an investigation in respect of an act alleged in a complaint if the Commissioner is of the opinion that the act, if proved, would constitute a contravention of any of sections 6 to 9 of the Electronic Commerce Protection Act or section 52.01 of the Competition Act or would constitute conduct that is reviewable under section 74.011 of that Act.
Notification
(3) The Commissioner shall notify the complainant and the organization that the Commissioner will not investigate the complaint or any act alleged in the complaint and give reasons.
Compelling reasons
(4) The Commissioner may reconsider a decision not to investigate under subsection (1), if the Commissioner is satisfied that the complainant has established that there are compelling reasons to investigate.
Powers of Commissioner
12.1 (1) In the conduct of an investigation of a complaint, the Commissioner may
(a) summon and enforce the appearance of persons before the Commissioner and compel them to give oral or written evidence on oath and to produce any records and things that the Commissioner considers necessary to investigate the complaint, in the same manner and to the same extent as a superior court of record;
(b) administer oaths;
(c) receive and accept any evidence and other information, whether on oath, by affidavit or otherwise, that the Commissioner sees fit, whether or not it is or would be admissible in a court of law;
(d) at any reasonable time, enter any prem- ises, other than a dwelling-house, occupied by an organization on satisfying any security requirements of the organization relating to the premises;
(e) converse in private with any person in any premises entered under paragraph (d) and otherwise carry out in those premises any inquiries that the Commissioner sees fit; and
(f) examine or obtain copies of or extracts from records found in any premises entered under paragraph (d) that contain any matter relevant to the investigation.
Dispute resolution mechanisms
(2) The Commissioner may attempt to resolve complaints by means of dispute resolution mechanisms such as mediation and conciliation.
Delegation
(3) The Commissioner may delegate any of the powers set out in subsection (1) or (2).
Return of records
(4) The Commissioner or the delegate shall return to a person or an organization any record or thing that they produced under this section within 10 days after they make a request to the Commissioner or the delegate, but nothing precludes the Commissioner or the delegate from again requiring that the record or thing be produced.
Certificate of delegation
(5) Any person to whom powers set out in subsection (1) are delegated shall be given a certificate of the delegation and the delegate shall produce the certificate, on request, to the person in charge of any premises to be entered under paragraph (1)(d).
Discontinuance of Investigation
Reasons
12.2 (1) The Commissioner may discontinue the investigation of a complaint if the Commissioner is of the opinion that
(a) there is insufficient evidence to pursue the investigation;
(b) the complaint is trivial, frivolous or vexatious or is made in bad faith;
(c) the organization has provided a fair and reasonable response to the complaint;
(d) the matter is already the object of an ongoing investigation under this Part;
(e) the matter has already been the subject of a report by the Commissioner;
(f) any of the circumstances mentioned in paragraph 12(1)(a), (b) or (c) apply; or
(g) the matter is being or has already been addressed under a procedure referred to in paragraph 12(1)(a) or (b).
Other reason
(2) The Commissioner may discontinue an investigation in respect of an act alleged in a complaint if the Commissioner is of the opinion that the act, if proved, would constitute a contravention of any of sections 6 to 9 of the Electronic Commerce Protection Act or section 52.01 of the Competition Act or would constitute conduct that is reviewable under section 74.011 of that Act.
Notification
(3) The Commissioner shall notify the complainant and the organization that the investigation has been discontinued and give reasons.
80. Subsection 13(2) of the Act is repealed.
81. Subsections 14(1) and (2) of the Act are replaced by the following:
Application
14. (1) A complainant may, after receiving the Commissioner’s report or being notified under subsection 12.2(3) that the investigation of the complaint has been discontinued, apply to the Court for a hearing in respect of any matter in respect of which the complaint was made, or that is referred to in the Commissioner’s report, and that is referred to in clause 4.1.3, 4.2, 4.3.3, 4.4, 4.6, 4.7 or 4.8 of Schedule 1, in clause 4.3, 4.5 or 4.9 of that Schedule as modified or clarified by Division 1, in subsection 5(3) or 8(6) or (7) or in section 10.
Time of application
(2) A complainant must make an application within 45 days after the report or notification is sent or within any further time that the Court may, either before or after the expiry of those 45 days, allow.
82. (1) Subsection 20(1) of the Act is replaced by the following:
Confidentiality
20. (1) Subject to subsections (2) to (6), 12(3), 12.2(3), 13(3), 19(1), 23(3) and 23.1(1) and section 25, the Commissioner or any person acting on behalf or under the direction of the Commissioner shall not disclose any information that comes to their knowledge as a result of the performance or exercise of any of the Commissioner’s duties or powers under this Part.
(2) Section 20 of the Act is amended by adding the following after subsection (5):
Disclosure under Electronic Commerce Protection Act
(6) The Commissioner may disclose information, or may authorize any person acting on behalf or under the direction of the Commissioner to disclose information, in the course of proceedings in which the Commissioner has intervened under paragraph 50(c) of the Electronic Commerce Protection Act or in accord- ance with subsection 58(3) or 60(1) of that Act.
83. Section 23 of the Act is replaced by the following:
Consultations with provinces
23. (1) If the Commissioner considers it appropriate to do so, or on the request of an interested person, the Commissioner may, in order to ensure that personal information is protected in as consistent a manner as possible, consult with any person who, under provincial legislation, has functions and duties similar to those of the Commissioner with respect to the protection of such information.
Agreements or arrangements with provinces
(2) The Commissioner may enter into agreements or arrangements with any person referred to in subsection (1) in order to
(a) coordinate the activities of their offices and the office of the Commissioner, including to provide for mechanisms for the handling of any complaint in which they are mutually interested;
(b) undertake and publish research or develop and publish guidelines or other instruments related to the protection of personal information;
(c) develop model contracts or other instruments for the protection of personal information that is collected, used or disclosed interprovincially or internationally; and
(d) develop procedures for sharing information referred to in subsection (3).
Sharing of information with provinces
(3) The Commissioner may, in accordance with any procedure established under paragraph (2)(d), share information with any person referred to in subsection (1), if the information
(a) could be relevant to an ongoing or potential investigation of a complaint or audit under this Part or provincial legislation that has objectives that are similar to this Part; or
(b) could assist the Commissioner or that person in the exercise of their functions and duties with respect to the protection of personal information.
Purpose and confidentiality
(4) The procedures referred to in paragraph (2)(d) shall
(a) restrict the use of the information to the purpose for which it was originally shared; and
(b) stipulate that the information be treated in a confidential manner and not be further disclosed without the express consent of the Commissioner.
Disclosure of information to foreign state
23.1 (1) Subject to subsection (3), the Commissioner may, in accordance with any procedure established under paragraph (4)(b), disclose information referred to in subsection (2) that has come to the Commissioner’s knowledge as a result of the performance or exercise of any of the Commissioner’s duties or powers under this Part to any person or body who, under the legislation of a foreign state, has
(a) functions and duties similar to those of the Commissioner with respect to the protection of personal information; or
(b) responsibilities that relate to conduct that is substantially similar to conduct that would be in contravention of this Part.
Information that can be shared
(2) The information that the Commissioner is authorized to disclose under subsection (1) is information that the Commissioner believes
(a) would be relevant to an ongoing or potential investigation or proceeding in respect of a contravention of the laws of a foreign state that address conduct that is substantially similar to conduct that would be in contravention of this Part; or
(b) is necessary to disclose in order to obtain from the person or body information that may be useful to an ongoing or potential investigation or audit under this Part.
Written arrangements
(3) The Commissioner may only disclose information to the person or body referred to in subsection (1) if the Commissioner has entered into a written arrangement with that person or body that
(a) limits the information to be disclosed to that which is necessary for the purpose set out in paragraph (2)(a) or (b);
(b) restricts the use of the information to the purpose for which it was originally shared; and
(c) stipulates that the information be treated in a confidential manner and not be further disclosed without the express consent of the Commissioner.
Arrangements
(4) The Commissioner may enter into arrangements with one or more persons or bodies referred to in subsection (1) in order to
(a) provide for cooperation with respect to the enforcement of laws protecting personal information, including the sharing of information referred to in subsection (2) and the provision of mechanisms for the handling of any complaint in which they are mutually interested;
(b) establish procedures for sharing information referred to in subsection (2);
(c) develop recommendations, resolutions, rules, standards or other instruments with respect to the protection of personal information;
(d) undertake and publish research related to the protection of personal information;
(e) share knowledge and expertise by different means, including through staff exchanges; or
(f) identify issues of mutual interest and determine priorities pertaining to the protection of personal information.
1993, c. 38
AMENDMENTS TO THE TELECOMMUNICATIONS ACT
84. Section 39 of the Telecommunications Act is amended by adding the following after subsection (5):
Disclosure authorized by Electronic Commerce Protection Act
(5.1) The Commission may disclose designated information obtained by it in the perform- ance or exercise of its duties or powers related to any of sections 6 to 9 of the Electronic Commerce Protection Act in accordance with subsection 58(1) or 60(1) of that Act.
85. (1) Section 41 of the Act is renumbered as subsection 41(1) and is amended by adding the following:
Exception — Electronic Commerce Protection Act
(2) Despite subsection (1), the Commission may not prohibit or regulate the use by any person of the telecommunications facilities of a Canadian carrier for the provision of unsolicited telecommunications, if the telecommunication is
(a) a commercial electronic message to which section 6 of the Electronic Commerce Protection Act applies; or
(b) a commercial electronic message referred to in subsection 6(5) of that Act, except to the extent that it is one referred to in subsection 6(7) of that Act.
(2) Subsection 41(2) of the Act, as enacted by subsection (1), is replaced by the following:
Exception — Electronic Commerce Protection Act
(2) Despite subsection (1), the Commission may not prohibit — or, except to the extent provided by subsection (3), regulate — the use by any person of the telecommunications facilities of a Canadian carrier for the provision of unsolicited telecommunications, if the telecommunication is a commercial electronic message to which the Electronic Commerce Protection Act applies or a commercial electron- ic message referred to in subsection 6(5) of that Act.
Regulation — Electronic Commerce Protection Act
(3) For the purposes of subsection (2), the Commission may regulate, with respect to the types of telecommunications described in subsection (4),
(a) the hours during which the telecommunications facilities of a Canadian carrier may be used by any person;
(b) the contact information to be provided by a person referred to in subsection (2) and the circumstances in which and persons to whom it must be provided;
(c) telecommunications made to medical or emergency services; and
(d) telecommunications where a live operator is not immediately available when the recipient of the telecommunication connects to it.
Types of telecommunications
(4) For the purposes of subsection (3), the types of telecommunications are those that are
(a) in whole or in part, interactive two-way voice communications between individuals;
(b) sent by means of a facsimile to a telephone account; or
(c) voice recordings sent to a telephone account.
2005, c. 50, s. 1
86. Sections 41.1 to 41.7 of the Act are repealed.
COMING INTO FORCE
Order in council
87. The provisions of this Act come into force on a day or days to be fixed by order of the Governor in Council.
Published under authority of the Speaker of the House of Commons
Available from:
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Available from:
Publishing and Depository Services
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