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legislations around in the world, I would have to say we are up to par." For one, the U.S. law deals only with e-mail spam, while in Canada the legislation covers all electronic messages, phishing, and spyware. "In the U.S. all they need to do is have an opt-out option, where as in Canada, we are way more strict, and under the new law you'd actually have to obtain consent even before sending," says Hung. "The law is drafted in such a way that makes it very broad, and it factors any type of commercial electronic messages." Another important factor of the legislation is that beyond a regulator's actions, it specifically gives spam victims the power to take private right of action and that could potentially lead to class actions if a lot of people decide to act in unison towards per- ceived spam. "There is clearly litigation risk associated with the legislation," says Kardash. "For prudent organizations there is a due diligence defence, but there will be litigation involving rogue actors, like major spammers, which is precisely the key target of this legislation in the first place." While the anti-spam legislation is now law, there are also a series of amendments to Canada's mammoth privacy leg- islation, the Personal Information Protection and Electronic Documents Act, that are currently in the pipeline and relate to this issue. Some of the PIPEDA changes are dictated by Bill C-28, others are not. The bill clearly states that it amends PIPEDA, says Hung. "One of the vital changes to PIPEDA is that if there is a computer program going around, collecting personal information, this is no longer allowed. It changes PIPEDA to explicitly prohibit this." That relates to computer programs that randomly harvest e-mail addresses from the Internet to later send them unsolicited messages. Only time will tell what will happen once the changes become mandatory in September. But the government says, based on the experience of other countries with similar leg- islation, it expects noticeable results quickly. The year after Australia passed similar legislation in 2004, for example, it dropped out of the world's top 10 spam-originating countries. "The intent of the proposed law is to deter the most damaging and deceptive forms of spam from occurring in Canada and help drive spammers out of Canada," the government noted in its policy statement of the new act, adding several of Canada's global partners, such as Australia, the United Kingdom, and the U.S., have passed strong domestic laws to combat spam and related online threats. It's also important to note the new legislation doesn't apply And with marketing evolving with the web, it is not fully clear what the law will and will not cover. "For example, in electronic space, there are viral marketing-related tools for campaigns such as invite-a-friend or send-a-friend, and it will be important to ensure that these are not unintentionally caught by the statutory framework as they have become a crit- ical tool for marketing in the digital space," says Kardash. PROFESSIONAL DIRECTORY dvantageSales_CL_Nov_10.indd 1 Supreme Court of Canada Counsel and Agency Services Henry S. Brown, QC Brian A. Crane, QC Guy Régimbald Martin W. Mason Graham Ragan Matthew Estabrooks Eduard J. Van Bemmel, Law Clerk 10/14/10 11:49:43 AM montréal ottawa toronto hamilton waterloo region 160 Elgin StreetSuite 2600OttawaOntarioK1P 1C3T 613-233-1781 calgary vancouver moscow london ntitled-5 1 12/13/10 3:13:40 PM to non-commercial activity. Political parties and charities that engage Canadians through e-mail are not subject to it if these communications do not involve selling or promoting a product. The problem is there is some uncertainty of how far the government regulators will take the implementation of the law. For example, there is a whole host of list-brokerage activ- ity that would be considered in the marketing community as entirely legitimate, yet the current form of the act may result in certain e-mail list-brokerage activity being significantly curtailed. www.CANADIAN Lawyermag.com M A RCH 2011 45 ntitled-5 1 4/6/09 4:20:13 PM