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A Statutory Private Right of Action against Spammers in Canada
Canadian Context, Lessons Learned, and Implications of Different Approaches
Report to Industry Canada's Task Force on Spam
December 17, 2004
A private right of action against those responsible for spam is one possible component of a broader legal toolkit in the fight against spam. If adopted, it should be treated as complementary to state enforcement of anti-spam laws, and should in no way be used as an excuse for less government action than would otherwise be the case. It should also be designed in such a way as to limit the potential for frivolous lawsuits, anti-competitive actions cloaked in the guise of a spam lawsuit, and extortionary actions against bona fide businesses who have merely slipped up.
Current private rights of action under Canadian law are unlikely to be used in the fight against spam, for a number of reasons. A new statutory private right of action specific to spam could be made more attractive to potential plaintiffs by providing for causes of action specific to spam (e.g., falsified headers, deceptive subject lines, non-functioning return address), by making liable businesses who knowingly promote their goods or services via spam (as well as the senders of spam), and by providing for statutory damages as well as injunctions.
The US has the most experience with private rights of action in the spam context, but it is still too early to tell whether such actions have had any impact on spam. In any case, it is difficult, if not impossible, to judge the effectiveness of private lawsuits in deterring spam: even if rates of spam continue to rise, they might have risen faster in the absence of such actions.
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