Spam Legislation in Canada: Federalism, Freedom of Expression and the Regulation of the Internet

Abstract

Email has emerged as a highly popular means of communication in Canada and around the world, allowing individuals and businesses to transmit information to recipients anywhere and at very little expense. However, the inexpensive and ubiquitous nature of email is being exploited by "spammers," who seek to profit from mass mailings of incredible volumes of unsolicited emails. Once merely an annoyance, the problem of spamming has grown into a substantial commercial and social concern. Many countries have enacted legislation directed specifically at the issue of spamming, although Canada has only recently begun to seriously consider this option in detail. This paper begins by reviewing the rise and nature of spam along with its associated costs and problems. It then reviews various options others have considered to control spam. It is expected that Canada would consider these options as it enters its own dialogue in deciding whether to enact spam-specific legislation. The prospect of future Canadian spam legislation raises two important constitutional considerations: (1) which level of Canadian government (federal or provincial/territorial) is legislatively competent to regulate the problem of unsolicited email communications; and (2) whether any effective spam legislation can be proposed which is also likely to survive scrutiny under subsection 2(b) of the Charter. This paper concludes that Canada's Parliament is competent to enact legislation targeting the unsolicited nature of spam, and that spam legislation can be effective while also surviving Charter scrutiny as a section 1 demonstrably justified limitation upon the section 2(b) Charter rights of spammers.