Weak anti-spam laws in TPP may undermine potential penalties

| January 25, 2016
Photo: flickr/ Thomas Hawk

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Problems? Oh, the Trans-Pacific Partnership has a few! Read about them all in the new series The Trouble with the TPP.

The Trouble with the TPP and privacy, which includes weak privacy laws, restrictions on data localization, bans on data transfer restrictions, and a failure to obtain privacy assurances from the U.S., also includes the agreement's weak anti-spam standards.

Given the fact that nearly all TPP countries have some form of anti-spam law (with the exception of Brunei), the inclusion of anti-spam provision in the TPP was not surprising, yet the agreement sets the bar far lower than that found in many countries. Article 14.14 states:

"Each Party shall adopt or maintain measures regarding unsolicited commercial electronic messages that:
(a) require suppliers of unsolicited commercial electronic messages to facilitate the ability of recipients to prevent ongoing reception of those messages;
(b) require the consent, as specified according to the laws and regulations of each Party, of recipients to receive commercial electronic messages; or
(c) otherwise provide for the minimisation of unsolicited commercial electronic messages."

The TPP provision features two key requirements: anti-spam laws that provide for a binding unsubscribe mechanism and some form of consent. Yet with the standard of consent left wide open, countries are free to adopt weak, ineffective standards and still comply with the TPP requirements.

In fact, since spam raises global concerns that frequently requires cross-border co-operation, the TPP would have been an ideal mechanism to strengthen international anti-spam rules and enforcement.

For example, the Canadian anti-spam law establishes an opt-in requirement for consent to receive commercial electronic messages. The same is true in leading TPP countries such as Japan and Australia (and the European Union). Setting a higher bar for consent would have improved privacy and the effectiveness of anti-spam laws throughout the TPP member countries.

Similarly, Canada's penalties for anti-spam violations were a direct result of Australian success with serious penalties for anti-spam violations. Despite the success, there are no prescribed penalties in the TPP, meaning that even cross-border anti-spam crackdowns within TPP countries may be undermined by inconsistent penalties and enforcement powers.

 

This piece originally appeared on Michael Geist's blog and is reprinted with permission.

Photo: flickr/ Thomas Hawk

 

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