CML 3126 Communications Law Yotam Fefferman S.N.

5833244 Professors Kirsten Embree and Monica Song

The new Canadian Anti-Spam Act: International comparison and future consequences.

1. Introduction
Many factors during the last few centuries contributed to the fact that the world became one global village. Without a doubt one of the main reasons for the significant alteration that occurred in the 20th century is the accessibility of information as a result of that the foundation of the World Wide Web (WWW). The creation of one network, that shares an "unlimited" amount of information and that has no specific owner, gave the opportunity to any person in the world to take part in the great creation at relatively inexpensive costs. Internet infused in to our daily routine and nowadays internet offers access to an infinite amount of information and services such as governmental (e.g. new acts, passports services), finance (e.g. stocks investments and other banking transactions) and social (e.g. Facebook, Twitter). One of the only services that the internet offers that engages with all these areas simultaneously is Electronic Messaging. Electronic messages include emails to the main mailbox, emails to specific website's inbox (e.g. university's inbox, internet bank account inbox) and instant messages account (e.g. Icq, Messenger). At 2008 Radicati's study of emails users found that by 2009 there will be more that 2 billion active mailboxes and almost 1.5 billion email users. Furthermore the study shows that by 2008 there were 516 millions active businesses' mailboxes .n1. Facebook, the main social network, has over 300 million users that use facebook on a monthly basis. n2 As time goes by society's main method of communication changes from the post and

CML 3126 Communications Law Yotam Fefferman S.N.5833244 Professors Kirsten Embree and Monica Song telephone to electronic messages. Even cell phones, that replaced most telephone use, offer electronic messaging services such as SMS or WiFi connection. Many studies have explored why email became so popular for businesses and for individuals. The next passage will elaborate some of the great advantages of emails. Firstly, a lot of individuals and businesses choose to use email as there main communication method because of financial reasons. For instance, companies that want their employees to communicate by mail or instant messages will save great sum of monies on telephone expenses or postal expenses. Furthermore, electronic messages save working time since the addressee doesn't have to be available at the time of sending the electronic message. Secondly, all the information that transferred by electronic messages are automatically documented by the computer. Documentation has a crucial weight in the business environment since if there is a factual argument between two parties it can be solve the dispute; or when necessary it has evidential importance in a court. Thirdly, electronic messages can contain photos, movies and audio, those components attract the eye quite easily. For example, if a person sends a photo to a friend with some political message it will be more likely that the friend will look at the photo and react to the photo. The friend can agree or not but the bottom line is, it will get to his conscious. From a business perspective, since electronic messages have such a significant affect on the addressee, advertisements that sent to a person's email inbox are more likely to attract the eye and therefore get more successful results. As we can see electronic messages have a lot of advantages for individuals and for businesses. Those advantages are exactly what made the internet and electronic messages such a fertile ground for business to use for advertisements needs.

CML 3126 Communications Law Yotam Fefferman S.N.5833244 Professors Kirsten Embree and Monica Song Nevertheless, with the great advantages, electronic messages also have a lot of disadvantages. Firstly, electronic messages can contain offensive materials. For example, the ICQ messaging software is used by pedophiles to reach to young children in order to satisfy their needs. Furthermore, sometimes even adults are exposed to offensive substance such as advertisements that contain offensive photos. For instance, in the last few years North American internet users received a fraudulent advertisement offering penis enlargement. The advertisement contained detailed photos of male genitals. Secondly, electronic messages can be a big time consumer, reducing work efficiency if an employee will receive unsolicited mails to his work's mail inbox. In 2001, 7 percent of all mails traffic in the US was unsolicited. Three years later the percentage of unsolicited mail increased to 50 percent. n3 An employees that filters unsolicited mail on their own, reduce his work efficiency drastically. In order to demonstrate the financial damage that a company may suffers from unsolicited mail, we will use the Postini's spam calculator. Postini is a company that offers solution for web and email security. n4 For example, a company with 1000 employees with average annual salary of $75,000 who receive 50 percent of unsolicited mails will lose $239,114 a year (not including any costs from viruses). Finally, the public is not the only one to suffer form theses intangible nuisances but also the file server owners suffer a great deal of loses. Since, users receive most of the emails their account for free, a 50 percent increase in mail traffic will force the servers' owners to enlarge their capacity of their servers. So what makes our inbox such an attractive destination for advertisers? There are a few main reasons why email inboxes are a great place for advertisements. Firstly, the cost of sending advertisements by emails is extremely inexpensive. Businesses that

CML 3126 Communications Law Yotam Fefferman S.N.5833244 Professors Kirsten Embree and Monica Song want to advertise their products or services can send mail to more than 100,000 inboxes at the cost of less than 1 dollar. If we compare this to the cost of advertisements by post or broadcasting advertisements the costs would be significantly more expensive. Secondly, the internet is a relatively new field which a lot of countries are still not monitoring in the same way that they monitor other types of media such as newspapers or television (e.g. CRTC's policy of not regulating internet in Canada). The internet market, which addresses more than a billion people without thorough inspection, provides an opportunity to advertise products and services that would usually be forbidden in main advertising methods. Senator Oliver commented on the difference between internet advertisements and regular advertisements: "I do not believe Canadians would tolerate pornographic magazine subscriptions or free edible underwear samples turning up in their traditional post each morning. I do not believe they would appreciate seeing their preteen daughter's name on the address box of a coupon book for diet pills and breast enhancements. I do not believe for a second Canadians would allow such damaging messages to enter their homes, yet this is precisely what occurs over the Web" n5

Finally, normal mailboxes in cities are often not accessible to advertisers since only the postal service personal have access. Therefore without postal service approval, which cost money, advertisements will usually not reach mailbox. Internet mailboxes are accessible to anyone who has the address and advertisements can be sent to our mailbox without our consent. Many companies offer Spam filter services that attempt

CML 3126 Communications Law Yotam Fefferman S.N.5833244 Professors Kirsten Embree and Monica Song to block unsolicited mail. Some of those filters work well and some of them do not. But the bottom-line is that none of them stop "all" unsolicited mail. The best analogy to describe the dynamic between unsolicited mail and filters is: "Why get sick and use medicine, if there is a way to prevent you from getting sick at all?" in other words, Because most unsolicited mail contain the details of how you can buy a product or service it is easy to find the company responsible for the unsolicited mail that was received and make them liable for their actions. Research shown that only 14% of all unsolicited mail receivers actually read the advertisements and only 4% from the readers purchase a product or a service that was received by unsolicited mail. n4 Although 4% percent may seems like an insignificant amount, if it costs 1$ to sent 100,000 advertisements and 4% of the recipients purchase. 78.4 percent will actually buy from spam mails. As in any field of everyday life our law system reacts to the technological changes we experience and provides solutions based on our daily needs. The solutions that the legal system provides are based on parliament statutes and case law, but effective law is sometimes not enough. Any law which is not enforced will not solve the issue that was the ground of the legislation in first place. Furthermore, the legislation needs to balance the rights of the different parties. Several countries in the past few years enacted legislation that attempts to solve the problem of unsolicited mails but none of them have solved the problem completely but some of them have reduced the problem to a significant degree. Unlike Australia, Israel, and Canada's neighbor in the south, that did foresee the future severity of the unsolicited mails epidemic, Canada took a much more passive approach towards the issue. The 1997 discussion paper of Canada Industry concluded that new legislation that specifically target preventing

CML 3126 Communications Law Yotam Fefferman S.N.5833244 Professors Kirsten Embree and Monica Song unsolicited mails is not necesery.n6 Instead Industry Canada recommended that the issue would be resolve by: (1) competition between ISPs (internet service providers) who will block unsolicited mails more efficiently. ISPs will, attract users by providing efficient spam block services. (2) Privacy legislation (3) Criminal provisions such as s.342.1 that forbid a person from using a computer in a fraudulent manner and with intent to commit mischief. n7 Although Canada Industry took a passive approach toward the issue the Superior Court of Ontario didn't. At 1999 Ontario Inc brought a suit against Nexx Online Inc regarding unsolicited mails. Ontario Inc is a company that sells furniture to the public. Nexx Online is a company that hosts privet and business websites on its servers. The agreement between the two companies stipulated that Nexx's services with Ontario Inc would comply with the netiquette. The netiquette is a compilation of the network etiquette that includes rules with respect to live chat, mailing and fills posting. Nexx Online revoked the contract on the grounds that Ontario Inc sent 200,000 unsolicited mails a day to random users. Ontario Inc argued that sending unsolicited mails don't infringe the netiquette. The court found in favor of Nexx and held that the right of users not to receive unsolicited mails is part of the netiquette and that Nexx Online has the right to revoke the contract. Wilson. J in his decision said: "The Internet is a potent legitimate means of advertising, selling on the Internet benefiting retailers and consumers alike. The use of the internet is in its relative infancy. In the words of counsel, it is "an unruly beast". Or so it will certainly become without a foundation of good neighbor commercial principles. The

unrestricted use of unsolicited bulk commercial e-mail appears to undermine

CML 3126 Communications Law Yotam Fefferman S.N.5833244 Professors Kirsten Embree and Monica Song the integrity and utility of the Internet system. Network systems become

blocked. The user expends time and expense reviewing or deleting unwanted messages. Of fundamental importance is the distortion of the essentially

personal nature of an e-mail address." n8

In 2003, Industry Canada altered its position from the 1997 discussion saying that Canada does need specific legislation to deals with the problem unsolicited mail. A year later, as a result of this change, the Minister of Industry established a spam task force to research the problem and find solutions. In 2005 the task force rendered its findings and conclusions. n8 currently Canada's Anti-spam act is on its 3rd reading in the House of Commons. n9 Canada was late to provide a solution to the problem of unsolicited mail, however one would argue that the delay will make Canada's act more efficient dealing with the problem since it is developed from the mistakes of other countries mistakes. The new global legislation raises several important questions with respect to constitutional and economical issues. This paper will compare the anti-spam legislation around the world (USA, Australia and Israel) to the upcoming Canadian Anti-spam Act. Although most anti-spam act deals with spam SMS and spam phone calls this paper will be focus on emails only. Furthermore this paper will try to analyze whether the Canadian legislator took into account the world wind anti spam legislation's faults and advantages. This paper will try to predict the implications of the new Canadian anti- spam act with respect to freedom of expression and economical issues.

CML 3126 Communications Law Yotam Fefferman S.N.5833244 Professors Kirsten Embree and Monica Song

2. Anti Spam Acts: A comparison

Unsolicited mail became a cross continental problem that put the use of internet at risk, since businesses were losing their efficiency and private individuals discovered that electronic messaging can potentially be a great burden. Countries had no choice but to provide a legislative solution to the problem. As in any field of legislation, countries are influence by their: culture, public opinion, political lobbying and economic strength. Without a doubt legislation that suits the needs of the US won't satisfy Canada's needs and vice versa. Therefore the importance of studying other countries legislation and making the right adjustment to your own country is a key task. In order to create an effective Anti spam Act, countries need to define what is considered spam and what is not. Creating an Act that is too rigid will breach the balance between the economic rights of businesses and individuals to receive advertisements and the right of people to control what kind of content they receive. There are few ways to classify unsolicited mail: volume, content, consent, mail with fraudulent intention and territorial segregation. n11 Each country has chosen a different classification approach with respect to unsolicited mail. The Australian Spam Act was legislated in 2003 and became effective in July 1st 2005. n12 USA's act the "Controlling the Assault of Non-Solicited Pornography and Marketing Act"(CAN SPAM Act), was legislated in 2003 and became effective in January 1st 2004. n13 Israel's Act was an amendment to the Communication Act named: "Amendment 40". The amendment was legislated in June 2008 and became effective in December 2008.

CML 3126 Communications Law Yotam Fefferman S.N.5833244 Professors Kirsten Embree and Monica Song n14 As mentioned before the Canadian equivalent, "Bill C-27", is in legislative process at the parliament.

2.1 Volume
Volume is a significant factor relating to with unsolicited mail. Mailing costs are negligible and emails addresses are harvested by software from random websites. Spammers can send million of mail with one mouse click. On the other hand, classification of unsolicited mails only based on volume will raise valid questions such as: whether a person who sends mail to all his contact list of friends and family is a spammer? Or whether messages to all of the employees from their employer to their personal mailbox can count as spam? Or whether a governmental message to a group of people can be count as spam? Although none of the countries chose to limit spam mail based on volume some of them chose to limit the methods which people use to get access to vast addresses lists. For example, Australia's act in sections 19 - 22 forbids an internet supplier from providing or assists in providing address harvesting software or a list of harvested addresses. Furthermore, it's forbidden to acquire address harvesting software. While The Australian Act forbids any kind of address harvesting the CAN-SAPM Act limits address harvesting only to automatic harvesting but vests power to federal trade commission to regulate other means of harvesting. Furthermore, the commission has the discretion to add quantity as a factor in the definition of spam. n14 The Israeli

Act did not classify any spam mail by its volume n15. Bill c-27 does not forbid address harvesting explicitly although it amend the Personal Information Protection

CML 3126 Communications Law Yotam Fefferman S.N.5833244 Professors Kirsten Embree and Monica Song and Electronic Documents which prohibits collection of personal information by means of unauthorized access to computer systems. n16

2.2 Content
Electronic messaging content can be can be a crucial factor as well. Internet users' are not distinguished by their political views, religion beliefs, age or gender. Since spammers are sending millions of messages a day without knowing who is the specific receiver some messages can be offensive to one group but not to another. For instance, in the last few years a fraudulent spam message was passed around. The Advertisement offered penis enlargement and the message contained photos of male genitals before and after the use of the product. Obviously, ignoring the fact that the product was false, if a minor, a religious person or a female received that message they are likely to be offended by it. There is some content that is considered inappropriate by consensus and some of the content is illegal as well. By comparing the different acts we can observe two main approaches. One is the regulation of legitimate commercial messaging such as advertisement for airline companies and books companies. Two is the regulation of none-legitimate commercial messaging such as child pornography or fraudulent messages. CANSPAM Act took a broader approach, regulating both kinds of messages. Again the Act gives the power to the federal trade commission to add any kind of messages that contain fraud, identity theft and child pornography to spam's definition. n17 All Acts undertook the mission of regulating commercial unsolicited mail. The basic

difference between the acts is infused in the definition of commercial message. The

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CML 3126 Communications Law Yotam Fefferman S.N.5833244 Professors Kirsten Embree and Monica Song Israeli act at section 30.a(a) defines a commercial message as any message which is sent for the purpose of encouraging an acquisition of either product or service or to encourage an expense of monies in any other way. n19 The CAN-SPAM Act in section 3.2(A) defines commercial messages as any electronic mail message that's primary purpose is the commercial advertisement or promotion of a commercial product or service. n20 The Australian Act in section 6.1 defines a commercial message as any message which has the purpose of offering to supply goods, to advertise or promote goods or services, to advertise or promote a supplier, or prospective supplier, of goods or services or to offer to supply land or an interest in land, or to advertise or promote land or an interest in land to advertise or promote a supplier, or prospective supplier, of land or an interest in land; or to offer to provide a business opportunity or investment opportunity; or to advertise or promote a business opportunity or investment opportunity; or to advertise or promote a provider, or prospective provider, of a business opportunity or investment opportunity; or to assist or enable a person, by a deception, to dishonestly obtain property belonging to another person; or to assist or enable a person, by a deception, to dishonestly obtain a financial advantage from another person; or to assist or enable a person to dishonestly obtain a gain from another person; or a purpose specified in the regulations. n21 Both the Israeli Act and the US Act definitions are very similar, because that in order to fall under it's definition there need to be an intention to benefit the business of the sender. Although they are similar the US act demands intention to promote a product or a service while the Israeli Act demands intention to make some transaction. The US Act has a wider definition of a commercial message. For example, a business that sends a message that offers free newspapers (with some political agenda) with out

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CML 3126 Communications Law Yotam Fefferman S.N.5833244 Professors Kirsten Embree and Monica Song advertisements will not fall under the Israeli definition because it does not encourage any kind of monetary transaction. But it may fall under the US act's definition because it is promoting the sender's agenda. The Australian Act has taken a much narrower scope toward the definition of commercial messages. The Australian Act defined it by sets of examples of what will count as commercial messages. By doing so, it leaves much less discretion to the court. Bill c-27, in section 2(2) takes the intermediate approach stating that commercial message is any message with a purpose to encourage a transaction, act or conduct of a commercial activity; In addition the act provides a list of examples of commercial messages. For example: Section 2(2)b: "offers to provide a business, investment or gaming opportunity". Taking that approach will leave enough discretion to the court and will conclude some specific problems that the Canadians users are suffering from.

2.3 Consent
Consent is one of the most controversial issues regarding unsolicited mails. As we reviewed in the last chapter the different countries chose diverse approaches toward the definition of a commercial message. Some argue that that wide definition of a commercial message will cause businesses' messages to be included under the act's definition. Other argue that in order to include as many spam mails as possible within the act's definition the act's consent regime should be very aggressive. There are two main regimes regarding consent issue. The next few paragraphs will elaborate the different regimes with respect to consent.

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CML 3126 Communications Law Yotam Fefferman S.N.5833244 Professors Kirsten Embree and Monica Song

2.3.1 Opt-in
The Opt-in regime is a regime which approves sending unsolicited mails only if the advertiser got the addressee's consent prior to the sending of the message. The different acts give several options of acquiring consent. First, express consent consent which the addressee gave explicitly to the advertiser. For instance, mark a check box that says: "I want to receive further information and deals regarding your products", while downloading free software. Second, implied consent a consent which the advertiser infers from the conduct of the addressee. For example, a costumer bought a specific product on the internet. Some acts will assume that by buying that specific product the purchaser gave the seller his consent for receiving further information that is similar to the product that was purchased. All acts require that the advertiser will include in the message an unsubscribe mechanism for easy revocation of consent. n22

2.3.2 Opt-out
The Opt-in regime is a regime which presumes that the advertiser has the addressee's consent until he revokes it. The Opt-out regime is also used in Canada at the National Do Not Call List (DNCL) n23. The Do Not Call List is an organization which its goal is to reduce the number of telemarketing calls. All a person has to do is to register and decide which kind of Commercial call he doesn't want to accept. It can be argued that if DNCL works so effectively than the Opt-out regime should be the regime that deals with unsolicited mails as well. In fact, except the CAN-SPAM Act none of the acts chose the Opt-out regime. The reason for the fact that the Opt-out regime wasn't chosen by most parliaments around the world was because the legislators wanted to

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CML 3126 Communications Law Yotam Fefferman S.N.5833244 Professors Kirsten Embree and Monica Song create the right balance between the right of the users not to accept unsolicited mails and the right of advertisers to promote their businesses. For example, if the default state is that consent exists, every business could send mails until the receiver revokes his consent and in fact spam mail will continue to receive from different sources.

2.3.3 The intermediate approach

In order to create the right balance, none of the counties could choose one of the coherent approaches. Nevertheless most countries chose the Opt-in regime as the default regime. From that state the different acts starting to exempt specific situation that will not fall under the acts' definition of spam. When we discussed the different definitions of commercial message , the CAN-SPAM Act's definition of commercial message was the broader compare to all other acts, since he require an intention to promote a business and not intention to create some kind of transaction.

Notwithstanding with the broad definition of the American act, the American act was the least efficient in stopping spam mails. If we will try to analyze what made the CAN-SPAM Act so inefficient we will find that, although the broad definition of commercial electronic message, it also applies an Opt-out regime. The CAN-SPAM Act is so ineffective that a lot of bloggers named it:" YOU CAN SPAM ACT". The next few passages will elaborate further about the different consent regime under the different acts.

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CML 3126 Communications Law Yotam Fefferman S.N.5833244 Professors Kirsten Embree and Monica Song 2.3.3.1

CAN-SPAM Act

As mentioned the CAN-SPAM Act is the only act that applies An Opt-out regime. Choosing that regime attracted great critic toward the act. Mr. John Mozena the cofounder of the Coalition Against Unsolicited Commercial Email (CAUCE) said: "It (CAN-SPAM Act) doesn't actually tell anybody not to spam; it just tells them they have to be honest while they are doing it"(Washington Post) n 24.(Emphasize added). The CAN-SPAM Act allows anyone to send spam under several conditions, Such as: unsubscribe spam mechanism, description of the content of the message, the company name and address.n25 The receiver can revoke his consent by sending a message to the sender. The sender is not allowed to send more spam messages after 10 business days from the day of the revocation.n26 The CAN-SPAM Act's consent regime doomed himself to be ineffective. The CAN-SPAM Act gave every business the authority to send spam mails under the condition that was mentioned above. Prior to the act's legislation it wasn't illegal to send spam messages but great sum of business knew that spamming is contrary to the netiquette therefore they didn't want send it. After the legislation of the act businesses look at spam sanding in a more legitimist manner. Therefore it became a legitimist way of promoting your business.

2.3.3.2

The Australian Spam Act

The Australian Spam Act has an Opt-in regime. The act requires that the sender will have the receiver's consent prior to sending the email. The consent can be either express consent or it could be inferred from the conduct of the receiver. n27 The burden of proof falls on the sender with respect to the existing of consent . However the act exempt particular publications of addresses form the previous presumption.

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CML 3126 Communications Law Yotam Fefferman S.N.5833244 Professors Kirsten Embree and Monica Song Such as: publication of particular employ address or director of company address or holder of statuary position or address that was publish with out a statement of refusal of getting spam. Furthermore the Australian Act Exempt messages that sent by mistake or without knowing but change the burden of proof to the person that sent the message. The Australian Act balance between the parties' rights by set a default of Opt-in regime but allowing sending messages to people that published their addresses and not request to not receive messages. As mentioned before address harvesting is not allowed as well so in a practical meter it will be very inefficient for an advertiser to get addresses manually.

2.3.3.3

The Israeli Act

The Israeli act uses Opt-in regime as well and explicitly says that even unique message that asks for person's consent will count as beach of the act. The Israeli Act creates the balance between the parties in two ways. First, the act exempts the first messages from business to business for the purpose of getting the receiver's consent. Second, a business can send messages if the email address was received while making transaction and when the business inform the address's owner that the address will be used for that meter and he did not refuse. The Israeli Act uses transaction as a trigger for allowing business to send advertisements. Furthermore, knowingly that business to business environment is also a great sum of the market shear; it gives businesses the opportunity to increase their customers' addresses.

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CML 3126 Communications Law Yotam Fefferman S.N.5833244 Professors Kirsten Embree and Monica Song 2.3.3.4

Bill C-27

Bill C-27 regime's with respect to consent is Opt-in regime. Bill C-27 separates between two methods of consent. First, express consent consent which was obtained explicitly form the receiver. In addition, the act encumber the sender by forcing him to disclose all relevant details such as: what will be the purpose the address use, what kind of information will be send, whether the address will be transfer to third party. n28 Second, implied consent the Bill define implied consent where a person was in business relationship or none business relationship and under several conditions. For instance, a business relationship is when a business was engaged with a person in some transaction. That relationship gives the right to send information to the person within 18 months from the transaction. Or none business relationship when a person donates, volunteers or becomes an official member of an organization gives the organization the right to sand electronic messages to that person. n29 Moreover, Bill C-27 includes in the definition of commercial message, a message that contain a request for someone's consent. n30 Meaning, a business can not send a person a message with no commercial content that asks for his consent. Unlike the CAN-SPAM Act, Bill C-27 has Opt-in regime that will make him much more affective because it will block all unsolicited mails as default and then allow specific kind of messages to be send. Bill C-27's Consent regime is very similar to the Israeli Act; By giving Businesses the right to send messages after transactions create good balance between the parties' rights. Bill C-27 improved its consent regime by giving 18 months period of implied consent which the receiver has the right to revoke the presumed consent at any time.

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CML 3126 Communications Law Yotam Fefferman S.N.5833244 Professors Kirsten Embree and Monica Song

2.4 Miscellaneous comparison 2.4.1 Right of action

The Australian Act does not give privet right of action when the act is breached. The act raises liability for civil penalties up to 10000 penalty units (1,160,000 AUD) for corporation and up to 2000 penalty units (232,000 AUD) for privet person.n31 The CAN-SPAM Act gives the right for statutory damages up to 250 USD for every breach. n32 Furthermore it raises liability for civil penalty of up to 2,000,000 USD.n33 Some of the state codes gives a privet right of action when their is a breach of the CAN-SPAM Act. For example, the code of California give privet right of action to ISPs or to a recipient of spam.n34 The Israeli act gives the right for privet

action and rises liability for civil wrong. The act gives the court the discretion to compensate a person with out the proof of damage up to 250USD for every message and raises liability for criminal penalty of 2500USD .n35 Providing a privet right of action is an important tool that should be accessible to the public. Since, individuals and corporations are the main parties that suffer from spam, giving privet right of action will create an incentive for the public to protect its right. Bill C-27 indeed gave privet right of action to individuals in order to make an incentive to the public to redeem its rights. In order to be compensated, a person should prove damages and can get 200 CAD for each breach of the act and up to 1,000,000 CAD.n36 Although the act gives privet right of action it demands damages. That requirement can be very hard to prove when a privet individual will try to. A person that sit at home is not really suffers a substantial monetary damages from spam.

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CML 3126 Communications Law Yotam Fefferman S.N.5833244 Professors Kirsten Embree and Monica Song

2.4.2 Territorial barrier

The only act that limited its borders form territorial reasons is the Australian Act. The Australian Act requires an Australian link in order for a message to fall under the act's definition of unsolicited mail. For example, an Australian link defined in section 7 namely that: n37 1. Message originates in Australia has an Australian link 2. Message that sent by a corporation which it's headquarter located in Australia. 3. The server that was used to access the message is located in Australia. The fact that the Australian Act limits itself on the grounds of territorial reason can damage its effectiveness, But since Australia has no neighbor countries it can make sense. Bill C-27 can not limit itself in that way. Canada's industry co-exists with the American industry. A lot of American companies have branches in Canada and therefore can be find liable for the breach of the Canadian act. Because the American consent regime and the Canadian consent regime are not similar, a legitimate message in the US can still breach the Canadian Act's provisions.

3. Case law comparison

In order for a full picture to be drawn with respect to Anti spam acts' comparison, we will review what part did the court take in that matter. The Israeli Act has privet right of action and since the act became effective a year ago, all of the cases are still from the lower instances. In case 1947/09 the plaintiff argued that the responded sent 22 emails which contained commercial content. The plaintiff asked repeatedly to be removed from addresses list. The responded fail to do so, even after the case brought to court the plaintiff kept receiving commercial

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CML 3126 Communications Law Yotam Fefferman S.N.5833244 Professors Kirsten Embree and Monica Song messages. The court held that since the responded didn't make any effort to stop the emails sending and kept ignoring the plaintiff requests, he ordering the responded to compensate the plaintiff with 100$ for each email. The reason for that reasoning is to comply with section 30a(j)3 which say that the court will take in account when he gives compensation the following factors: 1. The enforcement of the law and its deterrents 2. Encouragement of plaintiffs to redeem their rights 3. The severity of breach. In case number 2129-03-09,n38 the plaintiff argued that she is receiving spam mail from the responded. The plaintiff did not ask to be removed from the addresses list. The court held that a plaintiff need to demand his remove from the addresses list before he can come to court for remedy. Although the Israeli Act does not require that the plaintiff will ask the sender to remove his address, the court's decision do demands it. This decision will filter a great amount of suits and from one hand, it will reduce the court's workload but from the other hand it will reduce the effectiveness of the act. Since the American default consent regime is Opt-out, most of the cases are not dealing with the question, whether the sander had the receiver's consent, but they are focus on the question whether the sander comply with the rules the CAN-SPAM Act demands. For instance at R&D COMPUTERS case n39, the plaintiff argues that

the messages form the defended were misleading since the message did not contain proper return address, the subject line of messages was fault to describe the messages. The plaintiff asked for damages under the act provision. The defended argued that since the plaintiff did not take any reasonable action to prevent him self from

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CML 3126 Communications Law Yotam Fefferman S.N.5833244 Professors Kirsten Embree and Monica Song receiving messages the damages need to be mitigate. The court held that since the damages under the act are penalty damages, the rule of mitigation does not apply. Other type of common cases is cases that deal with abuse of website's services. Some of the most successful websites online are social networks such as facebook , tweeter or MySpace. Those websites offer a verity of services, one of the services is specific mailbox that can communicate with other people on the network. At the MySpace Case n40, the defended was accused with creating 11,000 fault profiles and sanding spam mail within the social network. The defended argued that messages within social network does not fall under the definition of electronic commercial message. The court denied that argument and held that indeed messages within social network falls under the definition. Moreover that court held that the defended is liable for sanding spam form his fake users. That ruling can raise valid questions with respect to social networks, Such as: whether a person with valid profile can be found liable for sanding spam mails to his friends. If we will try to foresee which kind of cases will the Canadian court will face, it will probably be more similar to the Israeli cases. Since both, Israel and Canada chose Opt-in regime, that factor will be the most influence factor.

4. Constitutional consequences: Freedom of expression

When we are talking about freedom of expression with respect to unsolicited mails the scope which defines that field is protection of commercial expression. For years the fact that commercial expression falls under the protection of freedom of expression wasn't clear. For example, until 1976 the US Supreme Court refused to include commercial expression as part of freedom of expression .n41

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CML 3126 Communications Law Yotam Fefferman S.N.5833244 Professors Kirsten Embree and Monica Song Prof. Hogg designates two main reasons why commercial expression should be protected as part of freedom of expression. First, commercial expression falls within the literally meaning of expression. Second, it is hard to distinguish between commercial freedom of expression and other kind if expressions which do falls within the protection.n42 Indeed the first case which the Canadian Supreme Court dealt with commercial freedom of expression was at 1988. The court held that Quebec's law that forbids commercial sings to be written in English is unconstitutional .n43.

4.1 Subsection 2(b)

Commercial freedom of expression in Canada is protected in subsection 2(b) and any legislation is subject to the restriction of section 1. n44 Section 2: Everyone has the following fundamental freedoms: (b) "Freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication" Section 2(b) explicitly says that expression by means of other media of communication is protected. Unsolicited mails can fall within that definition of expression. After we assumed that the court will find that unsolicited mails fall within the definition of expression we will try analyze whether Bill C-27 violates freedom of expression. In order for the court to decide if Bill C-27 actually violates freedom of expression, the court will have to recognize which specific provisions do that. This paper will focus on the provisions that were discussed in the comparison chapter. Bill C-27 sets an Opt-in regime with respect to spam. As mentioned that regime forbids the sanding of any commercial electronic message with out the receiver's consent. If unsolicited mail is a form of expression than Opt-in regime violates

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CML 3126 Communications Law Yotam Fefferman S.N.5833244 Professors Kirsten Embree and Monica Song freedom of expression with out a doubt. Furthermore, Bill C-27 force that commercial electronic mails that send with the consent of the receiver will include cretin details such as: valid address, unsubscribe mechanism and description of the content of the message. n45 Bill C-27 violates freedom of expression on two levels, first it determent whether a person is allowed to sand mails. Second, if it allows a person to sand electronic message it defines what the message should contain.

4.2 Section 1
Any act that violates the Canadian Charter will be analyzed by section 1 of the Charter. The rules of section 1 analyze is sets in section1 itself.n46 Section 1: The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. The test for section 1's analyze was set in the Oakes case n47. The next few paragraphs the paper will analyze the act using the Oakes case tests.

4.2.1 The Anti Spam Act's objective

In order to apply the Oakes case tests, the court need to define what was the purpose of the act. The objective should not be too broad because it will heart the analysis of the act under section1. The court can decide that the objective of the act is to reduce the costs of individuals and businesses that caused by unsolicited mails or to reduce the invasion of privacy to electronic mailboxes. In the analysis of the act we will presume that the court chose the first objective when analyze the act.

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CML 3126 Communications Law Yotam Fefferman S.N.5833244 Professors Kirsten Embree and Monica Song

4.2.2 Rational connection

The court will have to analyze whether there is rational connection between the act and the objective of the act. Bill C-27 will reduce the amount of unsolicited mails that a person receives. If we will compare the consent regime of Bill C-27 to it equivalent acts, Opt-in regime does reduce the quantity of mails a person receives. The fact that people will receive less spam mails will meet the goal of the act reducing the costs of receivers that are caused by unsolicited mail.

4.2.3 Minimal violation of rights

The courts will analyze whether the act violates freedom of expression in a way that is not greater that should in order to meet the goals of the act in a reasonable way. n48 Bill C-27 forbids the sending of unsolicited mails with out the consent of the receiver. The restriction is not absolute and the act gives the right to sand commercial electronic messages when a there is implied consent. (see: consent 2.3.3.4) or other exemptions. At Ford v. Quebec Case the court held that an act that absolutely forbids commercial sings to be written in English is unconstitutional. Bill C- 27 does not forbid sending of spam in total. Because of that the court will have to decide whether the act's exemptions are reasonable enough.

4.2.4 Proportionality between the violation of the right and the act's objective
The court will have to analyze whether the violation of freedom of expression is proportional to the act's objective. At ford v. Quebec the court held that different types of expression will be protected in a different ways. For example, political expression will be more protected than commercial expression. If commercial

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CML 3126 Communications Law Yotam Fefferman S.N.5833244 Professors Kirsten Embree and Monica Song expression is less protected, than Bill C-27 can violate more the right of people to send spam. It seems like the violation is proportional since we are talking about the right of a person to freedom of expression at privet property (electronic mail box). Unlike the general World Wide Web which has no owner, Mailboxes are privet property which owns by the company that provides it and the user of the mailbox. The fact that commercial expression is protected under section 2(b) can raise some questions such as: dose the spammer has the right to send unsolicited mails to our inbox? Although mailboxes are none tangible property the rule about the right of a person for commercial expression in privet property does not change. I.e. the owner of the property has the right to decide who is using his mailbox and for what purpose. Unlike the rule with respect to privet property, a person has the right to use public property for expression. In Committee for Governmental of Canada vs. Canada the court held unanimously that section 2(b) gives the right to use public property for expression. L' Heureux - Dube J. in her decision she rendered upheld that all governmental property can be used for expression. McLachin J. disagrees with the latter decision and in her decision she set three situations where expression should be allowed on governmental property. (1) Seeking truth (2) participation in decision making (3) individual self fulfillment.n49 The government owns great amount of emails addresses. If any person has the right for any expression on governmental property so spammer can sand unsolicited mails to all government emails accounts. Or if McLachin formula is the right formula, spammers can argue that sanding unsolicited mails to governmental emails addresses fulfill their individual needs of occupation or help with seeking the truth of real competition. In each way it seems

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CML 3126 Communications Law Yotam Fefferman S.N.5833244 Professors Kirsten Embree and Monica Song that the court will not allow sending spam to governmental address since it will decrease the efficiency of email with respect to the government.

5. Economical consequences
In order to foresee what will be the economical consequences we will try to classify the parties that will gain from the legislation of the new anti spam act and the parties that will be damage. The people that will gain from the new act will be privet individuals, businesses that use emails as they main communication method, companies that own servers and offer free email services (e.g. Gmail, Yahoo),big corporations that are not using spam as they main advertisement method. The people that will be damage by the new act will be advertisement companies that use emails as there main advertisement method, small and medium companies that use emails as their main advertisement method. The following paragraph will elaborate the specific economical consequences of the different parties. (a) Privet individuals Privet individuals will gain from the legislation

because they would not have to pay the costs that are caused by spam mail. In fact, there will be no change in Privet individuals' expanses since most internet plans ISPs provides does not limit the inbox capacity. Although, Privet individuals will not reduce their costs as a result of the new act, they will be less expose to fraud mails and viruses that cause by spam mails. (b) Businesses - business that use email as they main communication

method will increase their employers' efficiency. As mentioned, a company that has 1000 employs that earns average salary of 75,000 USD a year will save approximately 200,000 USD a year.

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CML 3126 Communications Law Yotam Fefferman S.N.5833244 Professors Kirsten Embree and Monica Song (c) Email Service Providers Most emails providers offers free email

service and providers that charge money for its services usually gives unlimited email capacity. Since the new legislation will reduce emails traffic those companies will lower their costs caused by spam emails storage on their servers. (d) Big corporations most big corporations has special budget for

advertisements and do not use spam as their main advertisement method. Big corporation who do use commercial emails, don't sand it to random people but to people that gave their email address when registered to their website. Big corporation will gain from the new act because small and medium companies that do use spam mails as their main advertisement method will not be able to do so. Therefore small companies will have harder time to penetrate to the market and big corporations will take that share of the market. In conclusion, the economical effect of the new act will help big corporations become bigger, will help email providers reduce their storage costs, won't reduce the cost of individuals but will reduce the nuisance of spam mail and finally, will damage the small and medium companies who straggle to take part of the market share.

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CML 3126 Communications Law Yotam Fefferman S.N.5833244 Professors Kirsten Embree and Monica Song

6. Epilogue
The legislation of the new anti spam act in Canada will have significant role in forming the new environment of electronic commercial messages. The new Canadian Act, at it present figure did take in account the advantages and the disadvantages of the different acts. The fact that the Canadian Act embrace Opt-in regime will make him be very effective. Nevertheless, the act has Opt-in regime, it still give business the legitimist right to advertise their products when a person involves with some transaction. The Canadian Act does not limit itself in a territorial ground, a fact that can make him affective to spam mails that come from different countries. In my view the biggest disadvantage of the act is the fact that he demands the proof of damage in order to be compensate in some situations. From a constitutional point of view it seems that the act's provisions will violate freedom of expression no more than it necessary in order to meet the act's objective. In conclusion, the new Canadian Anti spam Act will put Canada on the right trail that will lead Canada to a reasonable solution to the unsolicited mails problem.

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CML 3126 Communications Law Yotam Fefferman S.N.5833244 Professors Kirsten Embree and Monica Song

7. Footnotes
n1 The Radicati Group deals with market research firms in the computer and telecommunications industry. <http://email.about.com/gi/o.htm? zi=1/XJ&zTi=1&sdn=email&cdn=compute&tm=42&f=10&tt=12&bt=0&bts=0&zu= http%3A//www.radicati.com> n2 Facebook's press info <http://www.facebook.com/press/info.php?factsheet> n3 Controlling the Assault of Non-Solicited Pornography and Marketing Act (CAN-SPAM Act), 15 USC 7701 (2003). n4 Spam calculator. <http://www.postini.com/services/roi_calculator.html> n5 Andrea Slane, " Home Is where the Internet Connection Is: Law, Spam and the Protection of Personal Space" (2005) 2 UOLTJ 255 at 264 . n6 Techdirt - How Many People Read Or Buy From Spam? <http://www.techdirt.com/articles/20050203/0243234.shtml> n7 Karen Ng, " Spam Legislation in Canada: Federalism, Freedom of Expression and .the Regulation of the Internet" (2005) 2 UOLTJ 447 at 458 n8 The Criminal Code , R.S.C. 1985, c. C-46, s. 342(1). n9 Ontario Inc. v. Nexx Online Inc [1999] O.J. No. 2246 passage 25. n10 Karen Ng, " Spam Legislation in Canada: Federalism, Freedom of Expression and the Regulation of the Internet" (2005) 2 UOLTJ 447 at 465. n11 The statuses of Bill C-27 <http://www2.parl.gc.ca/Sites/LOP/LEGISINFO/index.asp? Language=E&query=5800&Session=22&List=stat> n12 Karen Ng, " Spam Legislation in Canada: Federalism, Freedom of Expression and the Regulation of the Internet" (2005) 2 UOLTJ 447 at 454 n13 The Australian Act : The Spam Act 2003, No. 129 of 2003. n14 supra note 3. n15 Controlling the Assault of Non-Solicited Pornography and Marketing Act (CAN-SPAM Act), 15 USC 7704, s.5(b)(1) (2003). n16 The Israeli Communication Act(Bezeq and Broadcasting)(Amendment #40)2008.

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CML 3126 Communications Law Yotam Fefferman S.N.5833244 Professors Kirsten Embree and Monica Song 2008 ) ( ) 04(, " n 17 The Personal Information Protection and Electronic Documents Act 2000 c.5, s.7(1) n18 supra note 3, 28 USC 994, s.5 (b) (2003). n19 supra note 16, s 30a(a) (2008). n20 supra note 3, 15 USC 7702, 3.2(A) (2003). n21 supra note13, s.6.1(a)-(p) (2003). n22 USA: supra note 3, 15 USC 7704, s. 5(5) (2003). Australia: supra notr13, s. 18.1(c)(i) (2003). Canada: Bill c-27, s. 6(1)(c) (2009). Israel: supra 16, 30(e) (2008). n23 Do Not Call List <https://www.lnnte-dncl.gc.ca/index-eng> n24 David McGuire ,"New Law Won't Can Spam, Critics Say" (2003) Washington Post.< http://www.washingtonpost.com/wp-dyn/articles/A5943-2003Dec16.html> n25 supra note 3, 15 USC 7702, 4(A) (2003). n26 supra note 3, 15 USC 7702, 4(A)(i) (2003). n27 supra note13, s.4 (2003). n28 Bill c-27, s.6-8 (2009). n29 Bill c-27, s. 6(3)(4) (2009). n30 Bill c-27, s. 2(3) (2009). n31 supra note13, s.25 (2003). n32 supra note 3, 15 USC 7706., s. 7(f)(3) (2003). n33 supra note13, s.26 (2003). n34 supra note 3, 15 USC 7706., s. 7(f)(2) (2003). n34 Cal Bus & Prof Code 17529.5. (2008). n35 supra note 16, s 30h (2008).

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CML 3126 Communications Law Yotam Fefferman S.N.5833244 Professors Kirsten Embree and Monica Song

n36 Bill c-27, s. 47 (2009). n37 supra note13, s.7 (2003). n38 (.( 90/7491 ' " <http://www.law.co.il/media/computer-law/hanit_atadgi.pdf> n39 2006 U.S. Dist. LEXIS 92573. n40 2007 U.S. Dist. LEXIS 56814. n41 Hogg, Peter W. Constitutional Law of Canada. 2003 Student Ed. Scarborough, Ontario: Thomson Canada Limited, 2003, p982. n42 Hogg, Peter W. Constitutional Law of Canada. 2003 Student Ed. Scarborough, Ontario: Thomson Canada Limited, 2003, page 689. n43 Ford v. Quebec [1988] 2 S.C.R 712. n44 The Canada Act, 1982,s 1 s.2. n45 bill c 27 s. 6(1) (2009). n46 RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199 at page 8. n47 R. v. Oakes, [1986] 1 S.C.R. 103. n48 R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713 at page 772. n49 Committee for Governmental of Canada vs. Canada [1991] 1 S.C.R 139 at page 228.

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