Memorandum of Understanding for Cooperation, Coordination and Information Sharing
Between the Commissioner of Competition, the Canadian Radio-television and Telecommunications Commission and the Privacy Commissioner of Canada regarding the Implementation of their Mandates under Canada’s Anti-Spam Legislation
Between the Commissioner of Competition and the Canadian Radio-television and Telecommunications Commission Represented by the Chairman, the Canadian Radio-television and Telecommunications Commission and herein referred to as the "Chairman of the CRTC" and the Privacy Commissioner of Canada
October 22, 2013
Whereas An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act, S.C. 2010, c. 23, which received Royal Assent on December 15, 2010, is referred to in this Memorandum of Understanding as "Canada’s Anti-spam Legislation";
Whereas the Commissioner of Competition, the Chairman of the CRTC and the Privacy Commissioner of Canada are collectively referred to as the “Participants”;
Whereas Canada’s Anti-spam Legislation will be implemented through the Participants’ powers and authorities set out therein, as well as in the following other legislation administered and, as the case may be, enforced by each of the Participants respectively:
- for the Commissioner of Competition, the Competition Act, R.S.C. 1985, c. C-34, as amended;
- for the Privacy Commissioner of Canada, the Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5;
- for the Chairman of the CRTC, the Canadian Radio-television and Telecommunications Commission Act, R.S.C. 1985, c. C-22 and the Telecommunications Act, S.C. 1993, c. 38;
Whereas Canada’s Anti-spam Legislation authorizes the Participants to cooperate, coordinate and share information to facilitate enforcement activities under Canada’s Anti-spam Legislation, establishes a private right of action, and a framework under which the Participants can share information with foreign counterparts and gather information on their behalf;
Whereas under Canada’s Anti-spam Legislation, the Participants may engage in potentially overlapping enforcement activities under their respective legislative mandates, based on each Participant’s distinct enforcement powers and processes;
Whereas the Commissioner of Competition has civil and criminal enforcement responsibilities under Canada’s Anti-spam Legislation and under the Competition Act; and
Whereas due consideration is given to the Treasury Board Guidance on Preparing Information Sharing Agreements Involving Personal Information.
The Commissioner of Competition, the CRTC, and the Privacy Commissioner of Canada have entered into the following Memorandum of Understanding:
- The purpose of this Memorandum of Understanding "MOU" is to set out a framework respecting:
- cooperation and coordination among Participants in relation to enforcement activities under Canada’s Anti-spam Legislation; and
- the treatment of information that is shared among the Participants for the purpose of facilitating enforcement activities.
- The following definitions apply to this MOU:
- "enforcement activities" means any investigation or proceeding initiated by
- a Participant in relation to Canada's Anti-spam Legislation;
- the Commissioner of Competition in relation to section 52.01 or 74.011 of the Competition Act or, in respect of conduct carried out by electronic means, section 52, 52.1, 53, 55, 55.1, 74.01, 74.02, 74.04, 74.05 or 74.06 of that Act;
- the CRTC in respect of conduct carried out by electronic means, section 41 of the Telecommunications Act; or
- the Privacy Commissioner in relation to a collection or use described in subsection 7.1(2) or (3) of the Personal Information Protection and Electronic Documents Act.
- "foreign counterpart" means any foreign agency that is responsible for investigations or proceedings under a law of a foreign state that addresses conduct that is substantially similar to conduct prohibited in Canada’s Anti-spam Legislation and with which a Participant has entered into, or is or may be subject to, a cooperation agreement or arrangement.
- "overlapping enforcement activities" means enforcement activities contemplated, or undertaken, by any or all of the Participants with respect to conduct that might be subject to enforcement by more than one of the Participants.
- "enforcement activities" means any investigation or proceeding initiated by
- Subject to Paragraphs 12, 14 and 15, each Participant will notify the other Participants with respect to its enforcement activities that may potentially affect the other Participants’ interests in the application of Canada’s Anti-spam Legislation.
- Notification will ordinarily be given as soon as it becomes evident that notification is appropriate and will include the nature of the conduct under investigation and the provisions of Canada’s Anti-spam Legislation at issue. Notifications should be sufficiently detailed to enable the notified Participant to evaluate the effect of the activities on its interests in the application of Canada’s Anti-spam Legislation.
V: Enforcement Cooperation, Coordination and Information Sharing
- As provided under sections 57 and 58 of Canada’s Anti-spam Legislation, the Participants will consult with each other, to the extent appropriate, and may share information obtained in the course of, or otherwise related to, their enforcement activities. The Privacy Commissioner of Canada will only share personal information under this MOU to the extent necessary for such purposes.
- Where the Participants have identified possible overlapping enforcement activities, they will independently consider whether engaging in joint or parallel enforcement is appropriate. Unless inappropriate, the Participants will seek to coordinate their efforts.
- Where a Participant is in receipt of a request for information from, or assistance in gathering information on behalf of, a foreign counterpart, unless requested otherwise, that request will be disseminated to the other Participants on a timely basis with a view to identifying which Participants will be involved in replying to the request, as well as any subsequent steps.
- Where appropriate, the Participants will negotiate and enter into new foreign counterpart arrangements that name all three Participants and the foreign counterpart(s) in the same arrangement.
- The Participants will work together to minimize any potential adverse effects of one Participant’s enforcement activities on the other Participants’ interests in the application of Canada’s Anti-spam Legislation. They will endeavour to resolve, where appropriate, any questions that may arise, in relation to this MOU, as soon as practicable.
VI: Private Right of Action
- A Participant will notify the other Participants upon receipt of an application or notification from a third party that it has initiated or discontinued a private action under Canada’s Anti-spam Legislation.
VII: The Commissioner of Competition’s Criminal Law Enforcement Authority Under Canada’s Anti-spam Legislation
- The Commissioner of Competition will notify the other Participants where a decision has been made to pursue enforcement activities under the criminal provisions of Canada’s Anti-spam Legislation within the Commissioner of Competition’s responsibility, as soon as practicable, once such a decision is made.
- Subject to Paragraphs 16 and 17 in respect of information already shared, once the Commissioner of Competition’s decision to pursue enforcement activity under the criminal provisions of Canada’s Anti-spam Legislation within the Commissioner of Competition’s responsibility has been communicated to the Participants, all cooperation and information sharing with respect to that specific enforcement activity will cease between the Commissioner of Competition and the other Participants.
- Officials of the Participants will meet as frequently as necessary, and in any event at least quarterly, to discuss their enforcement activities, as well as other matters of mutual interest relating to the application of Canada’s Anti-spam Legislation or the operation of this MOU.
IX: Existing Laws and Confidentiality of Information
- Nothing in this MOU requires a Participant to take any action, or to refrain from acting, in a manner inconsistent with existing laws, including the Access to Information Act.
- Notwithstanding any other provision in this MOU, no Participant is required to communicate information, including in notifications, to any other Participant if such communication would be incompatible with its interests under the legislation it administers or enforces. However, given the potential for overlapping enforcement activities by the Participants under Canada’s Anti-spam Legislation, and subject to Paragraphs 11 and 12, best efforts will be made by the Participants to share what information they can, consistent with their interests and legal obligations.
- Each Participant will, to the fullest extent allowed by law, seek to maintain the confidentiality of any information obtained by it solely from another Participant. In the event a Participant receives a request by a third party for disclosure of such information, it will notify forthwith the Participant that provided it with the information. Unless the Participant that provided it with the information has given prior written consent to its release, the notifying Participant will oppose such a request to the fullest extent possible allowed by law.
- Information obtained by one Participant solely from another Participant will not be used by it for purposes other than enforcement activities as defined in this MOU without the prior written consent of the Participant that provided it with the information.
X: Communications Under this Memorandum of Understanding
- Each Participant will designate officials for the purposes of notifications and other communications under this MOU.
XI: Nature of this MOU
- This MOU is intended to facilitate cooperation, coordination and information sharing between the Participants and is not intended to be legally binding or enforceable by the Courts.
XII: Date of Effect, Termination or Amendment
- This MOU will come into effect on the date Canada’s Anti-spam Legislation comes into force and will remain in effect until terminated in accordance with the terms of Paragraph 21.
- This MOU may be terminated at any time, with the written notice of the Participant(s) wishing to terminate it.
- The MOU will remain in effect for thirty (30) days following the date the Participant wishing to terminate it provides written notice of termination to the other Participants.
- In the event that this MOU is terminated in part pursuant to Paragraph 21, this MOU will remain in effect between the remaining two Participants. However, in the event that this MOU is terminated in part or in full, Paragraphs 16 and 17 will continue to apply to all three Participants notwithstanding such termination.
- This MOU can be modified, or supplemented, as agreed by all of the Participants, through an exchange of letters, duly executed by all Participants.
In Witness Whereof, the undersigned have signed this Memorandum of Understanding in both the English and French languages.
Commissioner of Competition
and Telecommunications Commission
Privacy Commissioner of Canada
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