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Why the ECPA Lays the Groundwork To Kill The Do-Not Call List

By Michael Geist

While the focus of attention on the Electronic Commerce Protection Act has obviously been on the anti-spam provisions (more on the enforcement as well as changes to privacy and competition law shortly), possibly the biggest story in the bill is one that has been unreported and is not discussed in the government briefing materials.  Buried at the very end of the bill, are provisions that would kill the National Do-Not-Call list.  Section 86, the second last provision in the bill, states simply that Sections 41.1 to 41.7 of the Telecommunications Act are repealed.  Those sections are the provisions that create a legislative framework for the national do-not-call list. 

What is going on?

It would appear that the Government is laying the foundation for killing the do-not-call list with plans to replace it with the approach found in the ECPA.  That could be a good news story, since the ECPA adopts an opt-in model (ie. companies need consent before sending electronic commercial messages).  This means that Canadians would not need to register their phone numbers on the list, since the presumption would be that there is no right to call unless the caller/marketer has express or implied consent.  While many of the current do-not-call exceptions are found in the ECPA, some are not.  For example, the newspaper exception contained in the do-not-call list is not part of the ECPA and would therefore disappear with this transition.

 

The legal approach to kill the DNCL and replace it with the ECPA is complicated.  The definition of an electronic message includes voice messages; however, Section 6(7) expressly excludes commercial electronic messages that are two-way voice communications or voice recordings.  So, the starting position is that the ECPA could apply to telemarketing but does not.  Note that without the exception, the same opt-in rules that will apply to email marketing (ie. express or implied consent under certain circumstances) would apply to telemarketing.

The last section of the ECPA addresses changes to the Telecommunications Act.  They include repealing the do-not-call provisions but granting the CRTC the power to regulate the telemarketing commercial electronic messages that were previously excluded from the ECPA.  As if that were not complicated enough, the law only comes into effect with an order from Governor in Council.  This gives the Government the power to trigger when the law takes effect.  Rather than having the entire law take effect at once, the provision states that the "Act come into force on a day or days to be fixed."  This means that the ECPA could take effect first and then changes to the Telecommunications Act that kill the DNCL come along later.

All of this strikes me as unnecessarily complicated and secretive.  By including these provisions, the government has begun to acknowledge that the DNCL is flawed (more on how just how flawed in my column this week) and that an opt-in model would be far better.  Merely opening the door to change without a firm timeline is not good enough, though.  If the DNCL is to be replaced, better to give everyone commercial certainty and get on the with the job.

Full post as published by Michael Geist on April 27, 2009 (boomark / email).