Anti-Spam Law in Canada: Criminal Law v. Regulation

In Canada's first criminal spam case, the Alberta Court of Appeal has upheld the acquittal of a spammer charged with counseling to commit an indictable offence, because he lacked the requisite intent. The accused, René Hamilton, purchased 200 "Top Secret Reports" stored in ZIP files containing information on such topics as the construction of homemade bombs, breaking into private homes, and a hacking program to generate working credit card numbers.   In attempting to re-sell the files, Hamilton sent an unsolicited e-mail advertisement to several hundred people.   Following complaints, Hamilton was charged under s 464 of the Criminal Code for counseling four indictable offences: making explosive substances, doing anything with intent to cause an explosion, break and enter, and fraud.   At trial, the judge accepted Hamilton's testimony that he had not read all the files, and had no interest or intention in encouraging customers to commit crimes.   In addition, no one who received the files committed an offence as a result of receiving the information. The Court of Appeal affirmed both of the principal rulings at trial: first, that Hamilton lacked the intention to counsel his customers to commit the crimes found in the advertisement and, secondly, that Hamilton did not intend that the crimes described in the secret files, or the fraud implicit in the credit card number generator scheme, be committed. The case illustrates that the criminal law is a blunt instrument for dealing with spam and it should serve to increase demands for new federal regulation. However, potential relief may be in the making after Bill S-23 was introduced in the Canadian Senate on September 17, 2003.   The Bill, entitled An Act to prevent unsolicited messages on the Internet, aims to establish and maintain a no-spam list, adopt more severe offences for spam involving pornography, fraud, or where children are targeted; erect a regulatory council (where ISP participation would be compulsory); and require the federal Minister of Industry to consult with provincial and international governments on methods to control and reduce spam.   For the full reasons for judgment in the R. v Hamilton case, see: http://makeashorterlink.com/?R2AC52EF5. A copy of Bill S-23 can be found at: http://makeashorterlink.com/?J29C63EF5. Summary by: Michael Erdle and Colin Adams