[38] Bill 69 Original (PDF)

Bill 69 2004

An Act to prevent
unsolicited messages
on the Internet

Preamble

The Internet is a national and international asset of great value in communication, education and research and for the conduct of business;

The usefulness and efficiency of the Internet is threatened by large volumes of unsolicited messages that by their volume constitute a nuisance and waste time;

Many of these messages contain or offer pornographic material, advocate illegal activities or solicit or offer business that is of no interest to recipients;

Means are available to control unwanted messages;

Because of the nature of the Internet, co-operation between governments, and among governments and industry associations, is necessary to control the flow of such messages;

Therefore, Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:

Definitions

1.  In this Act,

"address" means an address to which e-mail may be sent in Ontario; ("adresse")

"e-mail" means a message from a sender to one or more recipients in Ontario transmitted by the Internet; ("courriel")

"Internet" means the international electronic communication network known by that name; ("Internet")

"Internet service provider" or "provider" means a person who provides a service to give the public access to the Internet; ("fournisseur de services Internet", "fournisseur")

"Minister" means the Minister of Consumer and Business Services; ("ministre")

"no-spam list" means the list maintained under section 4; ("liste anti-pourriel")

"no-spam notice" means a notice given by the owner of an address in Ontario that no spam should be sent to the address; ("avis anti-pourriel")

"opt-out message" means an instruction from the owner of an address,

(a) to the sender of a message that the sender must not send any further messages to the address, or

(b) to the sender of a message who sends it on behalf of another person that the sender must advise the other person not to send any further messages to the address; ("message anti-pourriel")

"spam" means one or more unsolicited messages sent and received on the Internet, but does not include a message sent by a person to another person with whom they have an existing commercial or personal relationship; ("pourriel")

"spam filter" means an electronic automated process that is established by an Internet service provider to analyze incoming messages and that,

(a) maintains the confidentiality of, and does not reveal to the provider or any person, the content of any message, and

(b) rates every incoming message to determine whether it is likely to be spam, using factors that may include the following:

(i) it contains words or images commonly found in spam,

(ii) it contains words or images commonly found in pornography,

(iii) it was sent by any person or site on a list of persons or sites that are known to send spam,

(iv) the sender is not identified with a valid address,

(v) the intended recipient is not properly and individually identified or is identified only as a member of a class of recipients to whom a message is to be sent,

(vi) the sender is not a person to whom the intended recipient has previously communicated through the provider,

(vii) the sender is a person to whom the intended recipient has sent an opt-out message,

(viii) the message appears to offer goods or services and does not provide for the intended recipient to send an opt-out message, and

(ix) the sender is or purports to be an agent of a person who has filed a list of authorized agents under section 5 and the sender is not on that list. ("filtre anti-pourriel")

Inter-governmental consultation

2.  (1)  The Minister shall initiate consultations with officials of the federal government and of the other provinces for the purpose of,

(a) sharing information on means to control spam and on persons who are identified as senders of spam;

(b) finding new ways to control and limit the flow of spam; and

(c) co-operating in law enforcement activities related to the misuse of the Internet for illegal purposes or the sending of spam.

Annual report

(2)  The Minister shall prepare a report of activities under subsection (1) in respect of every year, submit it to the Lieutenant Governor in Council and lay it before the Assembly if it is in session or, if not, at the next session.

Referral to committee

(3)  Every report that is laid before the Assembly shall be deemed to be referred to the standing committee of the Assembly that normally deals with matters under the administration of the Minister.

Industry consultations

3.  (1)  The Minister shall initiate consultations with the Canadian Association of Internet Providers for the purpose of,

(a) obtaining the Association's advice on matters relating to service to the public through the Internet, including the prevention of misuse of the Internet and the control and reduction of spam;

(b) determining the best way in which the Minister may assist the Association in representing the interests of providers' customers for the purpose of controlling and reducing spam; and

(c) developing and approving spam filters or other means of controlling spam.

Same

(2)  The Minister may consult with any other bodies or organizations, as he or she considers appropriate, for the purposes referred to in subsection (1).

No-spam list

4.  (1)  The Minister shall, within 180 days after the day on which this Act comes into force, establish and maintain a no-spam list.

Notice filed

(2)  Any person who is the owner of an address may file with the Minister a no-spam notice in the form and manner determined by the Minister.

Advance check

(3)  No person shall send spam to an address unless the person has first determined, from the Minister or the body to which the Minister's responsibilities under this section are delegated, that the address is not on the no-spam list.

Means for checking

(4)  The Minister shall establish electronic means for allowing a person to make the determination required by subsection (3).

No addresses provided

(5)  The means established under subsection (4) shall not provide any address to the person.

Confidentiality

(6)  The no-spam list is not a public document and the Minister shall not reveal to any person the identity or address of any other person who files a no-spam notice.

List of mailing agents

5.  Every person who authorizes an agent to send e-mail on their behalf must promptly notify the Minister,

(a) that the agent is so authorized; and

(b) if the authorization is terminated, of the date of termination.

Delegation to other body

6.  The Minister may delegate the Minister's responsibilities under sections 4 and 11 to any board, commission or agency of the Government of Ontario that is accountable to the Minister.

Offences by e-mail senders

7.  Every person commits an offence who,

(a) sends spam to an address without identifying it as such;

(b) sends spam to an address,

(i) that is on the no-spam list, or

(ii) in respect of which the owner has sent an opt-out message to the person sending the message or to a person whom the person represents in sending the message;

(c) sends spam to an address without determining that the address is not on the no-spam list;

(d) sends spam that does not contain a means for the recipient to send an opt-out message;

(e) sends spam that does not show the address of the sender;

(f) sends spam that offers goods or services on behalf of another person without showing the identity of the other person;

(g) sends spam that offers goods or services and contains a false statement about the goods or services or the identity or address of the sender or another person on behalf of whom the sender is acting; or

(h) sells, trades or offers to sell or trade or uses any means to collect or obtain addresses from the Internet for the purpose of enabling any person to send spam to those addresses.

Penalties

8.  (1)  A person who commits an offence under section 7 is liable on conviction to a fine not exceeding $5,000.

Greater penalty in certain cases

(2)  A person who commits an offence under any of clauses 7 (a) to (g) is liable on conviction to a fine not exceeding $10,000, or to imprisonment for a term not exceeding two years, or to both, if the spam contains,

(a) material that is child pornography within the meaning of section 163.1 of the Criminal Code (Canada);

(b) a depiction of explicit sexual activity; or

(c) a message that constitutes an attempt to defraud the recipient.

Children

(3)  A person who commits an offence referred to in subsection (2) in the circumstances described in that subsection is liable on conviction to a fine not exceeding $20,000, or to imprisonment for a term not exceeding two years, or to both, if the spam was,

(a) designed to be attractive specifically to children;

(b) directed to any educational institution that is not a post-secondary institution; or

(c) directed to an address at which the sender had reason to believe children were likely to see the spam.

Forbidden to operate business

(4)  In the case of a person convicted of an offence referred to in subsection (2) committed in the circumstances described in that subsection, the court may order, and in the case of a person convicted of an offence referred to in subsection (3) committed in the circumstances described in that subsection, the court shall order, that the person be prohibited, for a period not exceeding five years, from,

(a) being the owner, director, partner, employee or shareholder of an Internet service provider; or

(b) communicating by e-mail with any person for any commercial purpose.

Directors' punishment

(5)  Where a corporation or partnership is convicted of an offence under this section, the court may, in addition to imposing a fine on the corporation or partnership, convict any person who is a director, partner or officer of the corporation or partnership of the same offence, if the court finds that the person ordered the act for which the corporation or partnership was convicted, or knew that it was going to be carried out and tolerated it.

Deeming provision

9.  If a person initiates spam from any place in a manner that allows it to be received in Ontario, and it is received by another person in Ontario, then, for the purposes of section 7,

(a) the person who initiated the spam is deemed to have sent it to the other person, whether or not the person had a specific intent that the other person should receive it, and whether it was initiated within or outside Ontario; and

(b) the act of sending shall be deemed to have been effected in Ontario.

Providers banning senders not liable

10.  (1)  An Internet service provider who refuses or cancels service or access to any person who has committed an offence under this Act or who has, on more than one occasion, sent to the provider a message that the provider has reasonable grounds to believe is spam, is not liable to that person for any loss or damage arising from the refusal or cancellation.

Reasonable grounds

(2)  An Internet service provider has reasonable grounds to believe that a message is spam if the message fails to pass a spam filter approved by the Minister.

Agents

11.  (1)  If an agent is convicted of an offence under this Act, the Minister may send a notice to anyone who has advised the Minister of an authorization under section 5 that is still valid, requiring the cancellation of the authorization.

Cancelling authority to act

(2)  A person who has, by any means, authorized an agent to send messages on their behalf and who receives a notice respecting the agent from the Minister under subsection (1) shall terminate the authorization forthwith.

Not liable

(3)  No person who cancels an authorization because of a requirement arising under subsection (2) is liable to the agent for any loss or damage arising from the cancellation.

Cause of action

12.  (1)  Any person, including an Internet service provider, who receives spam in contravention of this Act in quantities that cause significant inconvenience may bring an action in nuisance in a court of competent jurisdiction against the sender, for damages or any other relief the court considers appropriate, including an injunction.

Deemed damage

(2)  A person who receives spam in quantities that, in the opinion of the court, cause significant inconvenience, shall be deemed to have suffered damage without it being specifically proved, and the court may award both general and punitive damages.

Commencement

13.  This Act comes into force on a day to be named by proclamation of the Lieutenant Governor.

Short title

14.  The short title of this Act is the Anti-Spam Act, 2004.

EXPLANATORY NOTE

The Bill provides for initiatives to control spam on the Internet.

Sections 2 and 3 require the Minister of Consumer and Business Services to initiate consultations with other governments and with the Canadian Association of Internet Providers relating to the control of spam.

Section 4 of the Bill provides that any person may give a notice to the Minister or the body to which the Minister delegates the responsibility that they wish to be on a "no-spam list", and persons sending spam must first check to see if the address is on the "no-spam list". The list will not be a public document and the Minister will provide only negative information from it, for example, that an address is not on the list.

Section 9 of the Bill provides that, wherever a message is initiated, if it is received by a person in Ontario, it is deemed to have been sent to that person and the act of sending is deemed to have been carried out in Ontario.

The Bill provides for offences and punishments that are more severe in respect of messages that involve pornography, explicit sexual activity or attempted fraud or that target children as receivers. It also provides a cause of civil action in nuisance for sending excessive spam and deems damage to have been caused if the volume is sufficient to cause inconvenience.