By: Howard Solomon - Network World Canada (28 May 2009)
A Toronto intellectual property lawyer says the proposed law will cause a lot of trouble for business. However, a law professor and member of the 2005 federal Task Force on Spam says the complaints are overstated
Canadian businesses should be wary of the proposed federal anti-malware law, says a Toronto intellectual property lawyer. Bill C-27, formally known as the Electronic Commerce Protection Act “needs some real re-thinking or amendment,” Barry Sookman of the firm McCarthy Tetrault said in an interview. “It has some fatal flaws in it.”
Introduced last month and about to go before Parliament’s Industry committee for detailed examination, the bill forbids anyone from installing a program on a computer that could send an electronic message without the consent of the owner or user. It also forbids anyone in Canada from sending a commercial message to any electronic address unless the receiver has consented. An exception is if the person sending the message has had a business transaction with the recipient in the previous 18 months. Penalties range from up to $1 million for individual violators to up to $10 million for organizations.
The legislation has the backing of a number of IT organizations, such as the Canadian Association of Internet Providers (CAIP) and the Canadian Advanced Technology Alliance (CATA).
But Sookman said Ottawa has drafted the legislation backwards and it may actually harm IT companies. For example, he said, it could be unlawful for a Web site to automatically install Javascript or Flash applets or HTML code on the computers of visitors without getting express – and not implied – consent. Similarly, the law suggests automatic software updates would be illegal, he said. It would be unlawful for a company sending an e-mail to buy more software licences from a vendor if the last business contact it had was more than 18 months before, Sookman said. Even fledgling software developers sending e-mail queries to distributors they’ve never had a commercial relationship with could be caught, he added.
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