An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act (S.C. 2010, c. 23)
Full Document:
- HTMLFull Document: An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act (Accessibility Buttons available) |
- PDFFull Document: An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act [391 KB]
Assented to 2010-12-15
CONSULTATION AND DISCLOSURE OF INFORMATION
Marginal note:Reports to Minister of Industry
61. The Commission, the Commissioner of Competition and the Privacy Commissioner must provide the Minister of Industry with any reports that he or she requests for the purpose of coordinating the implementation of sections 6 to 9 of this Act, sections 52.01 and 74.011 of the Competition Act and section 7.1 of the Personal Information Protection and Electronic Documents Act.
GENERAL
Marginal note:Mandate
62. The Commission is responsible for the administration of sections 6 to 46.
Marginal note:Appointment of experts, etc.
63. (1) The Commission may, with the approval of the Governor in Council, engage experts or other persons to assist the Commission in any matter.
Marginal note:Remuneration
(2) The experts and other persons engaged by the Commission must be paid the remuneration, and are entitled to be paid the travel and living expenses incurred in providing assistance to the Commission, as may be fixed by the Governor in Council.
Marginal note:Remuneration and expenses payable out of appropriations
(3) The remuneration and expenses of the experts and other persons engaged by the Commission must be paid out of money appropriated by Parliament to defray the cost of administering this Act.
Marginal note:Regulations — Governor in Council
64. (1) The Governor in Council may make regulations
(a) specifying the circumstances in which consent is deemed to have been withdrawn for the purposes of section 6;
(b) defining “personal relationship” and “family relationship” for the purposes of paragraph 6(5)(a);
(c) specifying classes of commercial electronic messages, or circumstances in which such messages are sent, for the purposes of paragraph 6(5)(c);
(d) specifying purposes of electronic messages for the purposes of paragraph 6(6)(g);
(e) specifying the use that may be made of a consent and the conditions on which a consent may be used for the purposes of paragraph 10(2)(b);
(f) specifying functions for the purposes of paragraph 10(5)(g);
(g) specifying operations for the purposes of subsection 10(6);
(h) specifying programs for the purposes of subparagraph 10(8)(a)(vi);
(i) specifying the circumstances mentioned in subsection 10(9) in which consent may be implied;
(j) defining “membership”, “club”, “association” and “voluntary organization” for the purposes of subsection 10(13);
(k) designating provisions whose contravention constitutes a separate contravention in respect of each day during which it continues;
(l) establishing additional factors to be taken into account in determining the amount payable under paragraph 51(1)(b); and
(m) generally, for carrying out the purposes and provisions of this Act.
Marginal note:Regulations — Commission
(2) The Commission may make regulations
(a) respecting the form of a request for consent for the purposes of subsections 10(1) and (3);
(b) respecting undertakings under subsection 21(1);
(c) respecting the service of documents required or authorized to be served under this Act including the manner and proof of service and the circumstances under which documents are to be considered to be served; and
(d) prescribing anything that is to be prescribed under this Act.
Marginal note:Review of Act by Parliamentary committee
65. Three years after the day on which this section comes into force, a review of the provisions and operation of this Act must be undertaken by any committee of the Senate, of the House of Commons or of both Houses of Parliament that is designated or established for that purpose.
TRANSITIONAL PROVISIONS
Marginal note:Existing business or non-business relationships
66. A person’s consent to receiving commercial electronic messages from another person is implied until the person gives notification that they no longer consent to receiving such messages from that other person or until three years after the day on which section 6 comes into force, whichever is earlier, if, when that section comes into force,
(a) those persons have an existing business relationship or an existing non-business relationship, as defined in subsection 10(10) or (13), respectively, without regard to the period mentioned in that subsection; and
(b) the relationship includes the communication between them of commercial electronic messages.
Marginal note:Software updates and upgrades
67. If a computer program was installed on a person’s computer system before section 8 comes into force, the person’s consent to the installation of an update or upgrade to the program is implied until the person gives notification that they no longer consent to receiving such an installation or until three years after the day on which section 8 comes into force, whichever is earlier.
AMENDMENT TO THIS ACT
68. Subsection 6(8) of this Act is repealed.
R.S., c. C-22AMENDMENT TO THE CANADIAN RADIO-TELEVISION AND TELECOMMUNICATIONS COMMISSION ACT
Marginal note:1993, c. 38, s. 85; 2001, c. 34, s. 31(E)
69. Subsection 12(2) of the Canadian Radio-television and Telecommunications Commission Act is replaced by the following:
Marginal note:Telecommunications
(2) The full-time members of the Commission and the Chairperson shall exercise the powers and perform the duties vested in the Commission and the Chairperson, respectively, by the Telecommunications Act or any special Act, as defined in subsection 2(1) of that Act, or by An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act.
R.S., c. C-34; R.S., c. 19 (2nd Supp.), s. 19AMENDMENTS TO THE COMPETITION ACT
Marginal note:R.S., c. 19 (2nd Supp.), s. 20(3)
70. (1) The definition “record” in subsection 2(1) of the Competition Act is replaced by the following:
“record”
« document »
“record” means any information that is recorded on any medium and that is capable of being understood by a person or read by a computer system or other device;
(2) Subsection 2(1) of the Act is amended by adding the following in alphabetical order:
“computer system”
« ordinateur »
“computer system” has the same meaning as in subsection 342.1(2) of the Criminal Code;
“data”
« données »
“data”, other than in Part III, means signs, signals, symbols or concepts that are being prepared or have been prepared in a form suitable for use in a computer system;
“electronic message”
« message électronique »
“electronic message” means a message sent by any means of telecommunication, including a text, sound, voice or image message;
“information”
« renseignement »
“information” includes data;
“locator”
« localisateur »
“locator” means a name or information used to identify a source of data on a computer system, and includes a URL;
“sender information”
« renseignements sur l’expéditeur »
“sender information” means the part of an electronic message — including the data relating to source, routing, addressing or signalling — that identifies or purports to identify the sender or the origin of the message;
“subject matter information”
« objet »
“subject matter information” means the part of an electronic message that purports to summarize the contents of the message or to give an indication of them;
Marginal note:R.S., c. 19 (2nd Supp.), s. 24
71. Subsection 16(6) of the Act is repealed.
Marginal note:R.S., c. 19 (2nd Supp.), s. 24
72. Subsection 20(2) of the Act is replaced by the following:
Marginal note:Copies
(2) Copies of any records referred to in subsection (1), made by any process of reproduction, on proof orally or by affidavit that they are true copies, are admissible in evidence in any proceedings under this Act and have the same probative force as the original.
Marginal note:1999, c. 2, s. 10; 2002, c. 16, s. 5
73. Subsections 33(1) to (7) of the Act are replaced by the following:
Marginal note:Interim injunction
33. (1) On application by or on behalf of the Attorney General of Canada or the attorney general of a province, a court may issue an interim injunction forbidding any person named in the application from doing any act or thing that it appears to the court could constitute or be directed toward the commission of an offence under Part VI — other than an offence under section 52 involving the use of any means of telecommunication or an offence under section 52.01, 52.1 or 53 — or under section 66, pending the commencement or completion of a proceeding under subsection 34(2) or a prosecution against the person, if it appears to the court that
(a) the person has done, is about to do or is likely to do any act or thing constituting or directed toward the commission of the offence; and
(b) if the offence is committed or continued,
(i) injury to competition that cannot adequately be remedied under any other provision of this Act will result, or
(ii) serious harm is likely to ensue unless the injunction is issued and the balance of convenience favours issuing the injunction.
Marginal note:Injunction — offences involving telecommunication
(1.1) On application by or on behalf of the Attorney General of Canada or the attorney general of a province, a court may issue an injunction forbidding any person named in the application from doing any act or thing that it appears to the court could constitute or be directed toward the commission of an offence under section 52 involving the use of any means of telecommunication or an offence under section 52.01, 52.1 or 53, if it appears to the court that
(a) the person has done, is about to do or is likely to do any act or thing constituting or directed toward the commission of the offence;
(b) if the offence is committed or continued, serious harm is likely to ensue unless the injunction is issued; and
(c) the balance of convenience favours issuing the injunction.
Marginal note:Injunction against third parties — offences involving telecommunication
(1.2) On application by or on behalf of the Attorney General of Canada or the attorney general of a province, a court may issue an injunction ordering any person named in the application to refrain from supplying to another person a product that it appears to the court is or is likely to be used to commit or continue an offence under section 52 involving the use of any means of telecommunication or an offence under section 52.01, 52.1 or 53, or to do any act or thing that it appears to the court could prevent the commission or continuation of such an offence, if it appears to the court that
(a) a person has done, is about to do or is likely to do any act or thing constituting or directed toward the commission of the offence;
(b) if the offence is committed or continued, serious harm is likely to ensue unless the injunction is issued; and
(c) the balance of convenience favours issuing the injunction.
Marginal note:Notice of application
(2) Subject to subsection (3), at least 48 hours’ notice of an application for an injunction under subsection (1), (1.1) or (1.2) shall be given by or on behalf of the Attorney General of Canada or the attorney general of a province, as the case may be, to each person against whom the injunction is sought.
Marginal note:Ex parte application
(3) If a court to which an application is made under subsection (1), (1.1) or (1.2) is satisfied that subsection (2) cannot reasonably be complied with, or that the urgency of the situation is such that service of notice in accordance with subsection (2) would not be in the public interest, it may proceed with the application ex parte but any injunction issued under subsection (1), (1.1) or (1.2) by the court on ex parte application has effect only for the period, not exceeding 10 days, that is specified in the order.
Marginal note:Terms of injunction
(4) An injunction issued under subsection (1), (1.1) or (1.2)
(a) shall be in the terms that the court that issues it considers necessary and sufficient to meet the circumstances of the case; and
(b) subject to subsection (3), has effect for the period that is specified in the order.
Marginal note:Extension or cancellation of injunction
(5) On application by or on behalf of the Attorney General of Canada or the attorney general of a province, as the case may be, or by or on behalf of any person to whom the injunction is directed, on at least 48 hours’ notice of the application to all other parties to the injunction, a court that issues an injunction under subsection (1), (1.1) or (1.2) may, by order,
(a) despite subsections (3) and (4), continue the injunction, with or without modification, for any definite period that is specified in the order; or
(b) revoke the injunction.
Marginal note:Duty of applicant
(6) If an injunction is issued under subsection (1), (1.1) or (1.2), the Attorney General of Canada or the attorney general of a province, as the case may be, shall proceed as expeditiously as possible to institute and conclude any prosecution or proceedings arising out of the acts or things on the basis of which the injunction was issued.
Marginal note:Punishment for disobedience
(7) A court may punish any person who contravenes an injunction issued by it under subsection (1), (1.1) or (1.2) by a fine in the discretion of the court or by imprisonment for a term not exceeding two years.
Marginal note:1999, c. 2, s. 12(1)
74. (1) Subsection 52(1.2) of the Act is replaced by the following:
Marginal note:Permitted representations
(1.2) For greater certainty, in this section and in sections 52.01, 52.1, 74.01, 74.011 and 74.02, the making or sending of a representation includes permitting a representation to be made or sent.
Marginal note:1999, c. 2, s. 12(1)
(2) Paragraph 52(2)(d) of the Act is replaced by the following:
(d) made in the course of in-store or door-to-door selling to a person as ultimate user, or by communicating orally by any means of telecommunication to a person as ultimate user, or
75. The Act is amended by adding the following after section 52:
Marginal note:False or misleading representation — sender or subject matter information
52.01 (1) No person shall, for the purpose of promoting, directly or indirectly, any business interest or the supply or use of a product, knowingly or recklessly send or cause to be sent a false or misleading representation in the sender information or subject matter information of an electronic message.
Marginal note:False or misleading representation — electronic message
(2) No person shall, for the purpose of promoting, directly or indirectly, any business interest or the supply or use of a product, knowingly or recklessly send or cause to be sent in an electronic message a representation that is false or misleading in a material respect.
Marginal note:False or misleading representation — locator
(3) No person shall, for the purpose of promoting, directly or indirectly, any business interest or the supply or use of a product, knowingly or recklessly make or cause to be made a false or misleading representation in a locator.
Marginal note:Proof of deception not required
(4) For greater certainty, in establishing that any of subsections (1) to (3) was contravened, it is not necessary to prove that any person was deceived or misled.
Marginal note:General impression to be considered
(5) In a prosecution for a contravention of any of subsections (1) to (3), the general impression conveyed by a representation as well as its literal meaning are to be taken into account.
Marginal note:Offence and punishment
(6) Any person who contravenes any of subsections (1) to (3) is guilty of an offence and
(a) liable on conviction on indictment to a fine in the discretion of the court or to imprisonment for a term not exceeding 14 years, or to both; or
(b) liable on summary conviction to a fine not exceeding $200,000 or to imprisonment for a term not exceeding one year, or to both.
Marginal note:Reviewable conduct
(7) Nothing in Part VII.1 is to be read as excluding the application of this section to the making of a representation that constitutes reviewable conduct within the meaning of that Part.
Marginal note:Where application made under Part VII.1
(8) No proceedings may be commenced under this section against a person on the basis of facts that are the same or substantially the same as the facts on the basis of which an order against that person is sought under Part VII.1.
Marginal note:Interpretation
(9) For the purposes of this section,
(a) an electronic message is considered to have been sent once its transmission has been initiated; and
(b) it is immaterial whether the electronic address to which an electronic message is sent exists or whether an electronic message reaches its intended destination.
Marginal note:Assisting foreign states
52.02 (1) The Commissioner may, for the purpose of assisting an investigation or proceeding in respect of the laws of a foreign state, an international organization of states or an international organization established by the governments of states that address conduct that is substantially similar to conduct prohibited under section 52, 52.01, 52.1, 53, 55 or 55.1,
(a) conduct any investigation that the Commissioner considers necessary to collect relevant information, using any powers that the Commissioner may use under this Act or the Criminal Code to investigate an offence under any of those sections; and
(b) disclose the information to the government of the foreign state or to the international organization, or to any institution of any such government or organization responsible for conducting investigations or initiating proceedings in respect of the laws in respect of which the assistance is being provided, if the government, organization or institution declares in writing that
(i) the use of the information will be restricted to purposes relevant to the investigation or proceeding, and
(ii) the information will be treated in a confidential manner and, except for the purposes mentioned in subparagraph (i), will not be further disclosed without the Commissioner’s express consent.
Marginal note:Mutual assistance
(2) In deciding whether to provide assistance under subsection (1), the Commissioner shall consider whether the government, organization or institution agrees to provide assistance for investigations or proceedings in respect of any of the sections mentioned in subsection (1).
Page Details
- Date modified: