CRTC announces first CASL anti-spam penalty – $1.1 million

The CRTC issued a press release on March 5 announcing that it has issued a Notice of Violation to Compu-Finder including a penalty of $1.1 million for violating CASL.

The Notice of Violation has not been made public, and we don’t know all the facts or exactly how CASL was applied. It relates to email messages sent to promote corporate training programs.

This should be a wake-up call to those who are not yet taking CASL seriously.

Unfortunately, though, until we see a decision containing the facts and how CASL was applied, it does not help those of us who are trying to understand how this difficult piece of legislation is going to be interpreted in practice.  It contains far too many unclear provisions, inconsistent provisions, and gray areas, and actual decisions would be most helpful to see.

CRTC releases CASL compliance program bulletin

The CRTC just released another bulletin regarding CASL – Compliance and Enforcement Information Bulletin CRTC 2014-326.  It sets out “Guidelines to help businesses develop corporate compliance programs”.

The bulletin sets out CRTC thoughts on best practices for the development of corporate compliance programs for both CASL and the do not call rules.  It is worth taking a look at, because having a proper compliance program in place reduces the likelihood of a violation, helps establish a due diligence defence (a due diligence defence may not give a complete pass on a violation, but will reduce the consequences), and helps avoid director and officer personal liability.

Keep in mind that these bulletins do not have the force of law, and don’t bind the CRTC. And as the bulletin rightfully points out, all businesses are different, and small businesses don’t have the same resources as large one.

For more information on CASL search my blog for “CASL”, or visit the HP CASL page.


Food for thought: Apple v Samsung lawsuit, and the state of broadband in Canada

That’s the title of my Slaw post for today.  It reads as follows.

Apple has sued Samsung claiming that Samsung’s tablets violate Apple tablet patents. Some of the features in question are actually part of the Android operating system, not just the tablet itself. In Australia, sales of Samsung’s new Galaxy Tab 10.1 are on hold pending court action. Setting aside the legal issues, and the debate over whether such patents are a good or bad thing for innovation, consider this point of view by Mike Masnick of Techdirt:

But, really, all Apple has done with this lawsuit is to signal to the world (loudly) that hey, we’re really freaking scared that Samsung has built a better product than we have.

Author Peter Nowak has published an article entitled “CRTC is peddling broadband Kool-Aid” that suggests that the state of broadband in Canada is not as rosy as the CRTC paints it. A CRTC report suggests that prices and speeds in Canada compare well against other countries. Peter points out that this was a result of comparing to only 8 countries. And that another report puts Canada in about 33rd place for download speeds, and 65th place for upload speeds. His conclusion:

The bottom line is Canada can’t even try to aspire to an innovation-based economy without first making sure it has proper upload speeds. This hasn’t occurred yet to the CRTC, which is obviously too busy peddling its Kool-Aid vision of a country with wonderful broadband.

For those on Google+, take a look at the comments on a post by Jacob Glick on this article where the consensus is that upload speeds increasing matter in a world where we are using cloud computing, and posting photos and video.

CRTC role in the new anti-spam act

That’s the title of my Slaw post for today.  It reads as follows.

I just listened to a teleseminar by the Canadian IT-Law Association on the Anti-spam act, primarily discussing the CRTC’s role.  Here are a few points that were raised.

The act is expected to come into force in September.  Regulations may be published for comment as early as late February or March.

The regulations will be crucial.  It will be important to look at them during draft stage and comment where necessary.

There will be an overlap in jurisdiction between the CRTC, Privacy Commissioner, and Competition Bureau, though CRTC is primary.

The CRTC role as enforcer is fairly new.  The do not call list was its first real enforcement mandate, as opposed to a supervisory and licensing role.

CRTC has power to issue preservation demands to telecommunication service providers, to issue production orders, and warrants for entry and inspection.

Penalties are AMPs, or Administrative Monetary Penalties.  They can be imposed by the CRTC without going to court.  The Act says they are not intended to punish, but to deter.  AMPs have in the past been described as unconstitutional.

CRTC can apply to court for an injunction, can issue a restraining order, and can enter into undertakings (i.e. a form of settlement).  Are also some offences under act, e.g. if fail to comply with an order.

A private right of action is included in the Act.  For actual damages – or for statutory damages.  Class actions are possible.

Once an undertaking is entered into, it restricts all other actions, including the private right of action.  (It will be interesting to see if a defendant in a class action would immediately go to the CRTC and try to enter into an undertaking.)

The CRTC will have a significant budget for enforcement.

Net neutrality controversial topic

For the London Free Press – October 19, 2009

Read this on Canoe

INTERNET CONTENT: There’s considerable debate in Canada and the United States about how much control Internet service providers should have over content

Net neutrality is a controversial topic that causes concern for Internet activists.

Net (or network) neutrality essentially means that those who control the Internet (Internet service providers, or ISPs) shouldn’t favour one person’s content over another. Think of it as a code of ethics for fair operation of the Internet.

Sounds simple enough, but it’s a complex and controversial area.

Supporters of net neutrality are far-reaching and include prominent and influential members of the Internet community.

For some — particularly ISPs — it is an issue they would prefer would just go away. ISPs often take the position that a certain amount of control over delivery of Internet traffic is necessary for efficient operation of the ‘Net.

Net neutrality focuses on the concern that ISPs filter or degrade certain content in favour of other content. Proponents feel discrimination of Internet content should be prohibited.

The issue really shouldn’t be about traffic discrimination as a concept, but over when it is or is not acceptable, and how it is done.

The CRTC held hearings on Internet traffic management practices last summer. It has yet to render an opinion on the matter.

The net neutrality controversy in the United States became prominent in August 2008 when the Federal Communications Commission (FCC) ordered Comcast to stop blocking peer-to-peer applications.

Comcast went to court, arguing that the FCC could not order the company to treat Internet traffic in a specific way. That matter has yet to be heard.

FCC chairman Julius Genachowski recently proposed wide-ranging rules for regulating how ISPs and wireless carriers can handle the subscribers’ traffic.

In the past, the FCC has provided guidelines on the prohibition of blocking certain traffic and pushing for net neutrality, but this was the first time actual rules were to be enacted.

The proposal was passed, but it will be months before final rules are be created.

U.S. President Barack Obama believes “well-crafted” regulations of the Internet would encourage investment and innovation.

Net neutrality proponents agree and want to protect the equal treatment of all types of data available to users on the Internet.

The proposed formal rules would ensure that Internet carriers cannot discriminate against certain Internet traffic by blocking service. Wireless carriers will also be subject to the rules.

But Republican senators disagreed. Such critics of net neutrality maintain the negative actions of one such carrier should not lead to such far-reaching consequences for the entire marketplace.

The Republican criticism is based on the fear of stifling investment incentives as the business of ISPs becomes hampered by government directives.

Critics also argue that the FCC decision prematurely draws conclusions about the effects of net neutrality and state that the “facts do not clearly demonstrate that a problem needs to be remedied.”

Similarly, the top executive at AT&T has said that in the absence of any “compelling evidence of problems or abuse,” the company would be disappointed if Washington enacted such rules.

CRTC network management hearings over – decision in a few months

Michael has a post summarizing his thoughts on the hearings.

I follow this subject from a distance out of interest – but it strikes me that one of the reasons we get such varied views and suspicions is that the facts are not always clear.  Of course, there will always be differences of opinion between those espousing the  fundamental theoretical philosophies of the internet, and the commercial interests of those that actually make the investments and provide connectivity.  But having an open, factual dialogue goes a long way to reach common ground.  Hopefully the hearings gave the CRTC what they need to do that.

CRTC network management hearings – congestion or competition?

The network management hearings continue.  And Michael’s coverage continues.  One of the interesting fundamental issues that has emerged is whether network management is about congestion or competition.  It seems that proponents talk about the need to deal with congestion, while opponents talk about the unfairness of using network management to provide a competitive advantage. 

Distinctions are also being made about management at the wholesale vs retail levels.   And whether the issue is that it happens at all, or whether its OK if it happens so long as the practices are disclosed.  Which leads to the arguement that disclosing means nothing if all the suppliers do the same thing.

It sounds like the quality of the submissions is high – so hopefully that will lead to a well thought out decision in the end.

CRTC network management – aka net neutrality – hearings underway

The CRTC’s network managemement hearings began yesterday.  A CBC article summarizes the scope of the hearing as:

“The CRTC is trying to develop guidelines for internet service providers on acceptable ways of managing internet traffic and congestion, taking into account both the freedom individuals to use the internet as they wish and the interests of ISPs to manage their networks.

The commission is focusing mainly on the questions:

  • What internet traffic management practices are acceptable and should any be considered as completely unacceptable?
  • Should ISPs disclose their practices and, if so, in what form?
  • Does the use of internet technologies for the purpose of internet traffic management raise privacy concerns?
  • Is the application of certain internet traffic management practices to wholesale services appropriate?
  • Is there a need for the commission to specify what practices are acceptable in relation to wireless service providers?
  • What analytical framework should the CRTC adopt in relation to internet traffic management practices and section 36 of the Telecommunications Act?

It will avoid dealing with its November decision to allow Bell to continue to continue throttling the customers of smaller ISPs that buy network access from it, as the decision is under appeal.”

For ongoing analysis, follow Michael Geist, who summarizes the first day’s hearing here.   If you want to follow this as it unfolds, Michael’s article has links to a liveblog and twitter feed.

For earlier information on this subject, search “crtc” and “network neutrality” on my blog.

CRTC decides to keep hands off new media

Michael reports that the CRTC’s just released decision based on their new media hearings that were held in February is that they will continue to not regulate media over the internet. 

The CRTC’s press release says in part:  “While broadcasting in new media is growing in importance, we do not believe that regulatory intervention is necessary at this time,” said Konrad von Finckenstein, Q.C., Chairman of the CRTC. “We found that the Internet and mobile services are acting in a complementary fashion to the traditional broadcasting system. Any intervention on our part would only get in the way of innovation.”

I concur with Michael when he says:  Overall, the decision to avoid new regulations and levy schemes is a good one.  Further, the intervention on undue preferences is both welcome and represents a potential first step in addressing the broader concerns associated with net neutrality.  The CRTC is the first to get criticized when it gets things wrong (or does nothing at all), but deserves praise when it gets things right.

CRTC net neutrality comments

That’s the title of my Slaw post for today.

It reads as follows:

Connie wrote a couple of days ago about the submission deadline for the upcoming CRTC network neutrality / network management / traffic shaping hearings. Since then, some submissions have been made public that illustrate how important this hearing will be, and how it will affect Canadian consumers and content providers.

The federal Privacy Commissioner has filed an well written submission that discusses the privacy aspects. The Commissioner’s blog post on the topic starts with:

What would you think if you wrote a letter and it could be opened up by a postal or a courier service before it reaches its destination? What would you think if that happened to your online communication? It’s not necessarily a hypothetical question.

Michael has a post that talks about the submission of the parent company of the Weather Network, quoting from their submission:

…the Commission should adopt a more expansive definition of net neutrality and traffic management that would encompass the commercial practices of both wire-line and wireless network operators. In our view, the Commission needs to take steps to ensure that, with respect to both wire-line and wireless network operators, traffic management practices are applied equitably and treat like-traffic in the same or comparable manner. Any management practices that treat certain types of content, particularly content produced or provided by the ISP or network operator, in a preferential or advantageous manner should not be permitted.

And they back that up with examples of actual wireless network neutrality violations they have encountered.