doing business in canada - Davies Ward Phillips & Vineberg LLP

available in French. However, advertisements for products such as cultural or educational products (i.e., books,CDs, etc.) may be exclusively in a language other than French, provided that the products themselves are in thatother language.Beginning in 2004, Industry Canada instituted an "anti-SPAM action plan" for Canada. SPAM, which is the wordused to refer to unsolicited commercial e-mail, has been estimated as constituting 86% of all e-mail worldwide.A drain on both business and personal productivity, SPAM is a threat to consumer confidence in the e-commercemarketplace. The initiative focused largely on using existing legislation to combat new forms of Internet-basedabusive advertising. In particular, the task force examined the use of both the Criminal Code and the CA aseffective means of combating this growing problem. In December of 2004, a British Columbia company thatused SPAM as part of its advertising strategy was found guilty of having engaged in reviewable conduct underthe CA. In addition to agreeing to cease making false and misleading claims through its website and SPAM, thecompany agreed to stop using SPAM for any of its representations to the public.In addition to the CA and the Criminal Code, privacy legislation may also be used to control SPAM. The PrivacyCommissioner recently released a decision in which it was decided that a person's workplace e-mail addresswould be considered "personal information" for the purposes of PIPEDA.The Minister of Industry for the federal government has recently introduced in Parliament Bill C-28, the FightingInternet and Wireless Spam Act (the "FIWSA"). The FIWSA is aimed at protecting consumers and businessesfrom dangerous forms of spam and regulating activities that are perceived to discourage the use of electronicmeans of carrying out commercial activities. The FIWSA contains provisions that prohibit the sending ofcommercial electronic messages without prior consent, the unauthorized installation of computer programs onanother's computer system, the altering of transmission data in an electronic message, and other activities thatimpact upon electronic commerce. In laymen's terms, the FIWSA is aimed at punishing email originating inCanada that involves identity theft, phishing, spyware and other forms of fraud. The FIWSA provides for bothadministrative penalties to be imposed by the CRTC against offenders and also civil actions by persons whosuffer damage as a result of violations.DATA PROTECTION AND PRIVACYPIPEDA applies to the collection, use and/or disclosure of personal information in the course of any commercialactivity within Canada. "Personal information" means information about an identifiable individual, but does notinclude the name, title or business telephone number of an employee of an organization (commonly referred toas "business card" information). A recent decision of the federal Privacy Commissioner concluded that anindividual's business email address is also "personal information" for the purposes of PIPEDA (although thisposition is not without controversy). "Commercial activity" means "any particular transaction, act or conduct orany regular course of conduct that is of a commercial character, including the selling, bartering or leasing ofdonor, membership or other fundraising lists". Businesses are required to establish an administrative structureto ensure that ten "privacy principles" are implemented: (1) accountability; (2) identification of the purpose forwhich the information is gathered; (3) consent; (4) limitations on collection; (5) limitations on use, disclosureand retention; (6) accuracy; (7) ensuring appropriate safeguards are in place; (8) openness; (9) individual access;and (10) challenging compliance. These principles are based on the international OECD Guidelines on theProtection of Privacy and Transborder Flows of Personal Data.As a result of the enactment of PIPEDA, private sector businesses are required to implement privacy policies inrespect of the collection, use and disclosure of personal information and to make those policies available to theircustomers. In addition, the legislation requires businesses to make the information collected about individualsavailable to them upon request.Industrial and Intellectual Property 53