Memorandum of Understanding between the Australian Communications and Media Authority and the Canadian Radio-television and Telecommunications Commission on mutual assistance in the Enforcement of Laws on Commercial Electronic Messaging and Telemarketing

The Australian Communications and Media Authority (“ACMA”) and the Canadian Radio-television and Telecommunications Commission (“CRTC”) (collectively, “the Participants”),

RECOGNISING the importance of developing a global and coordinated approach to address unlawful commercial electronic messaging and telemarketing, and the threats that they pose to consumers and their confidence in critical communications network;

RECOGNISING that the ACMA is a statutory agency established under section 6 of the Australian Communications and Media Authority Act 2005 (Cth); that the ACMA is responsible for the regulation and enforcement of commercial electronic messages under the Spam Act 2003 (“Spam Act”) and telemarketing under the Do Not Call Register Act 2006 (“DNCR Act”) and associated Industry Standards in force under the Telecommunications Act 1997; that both the Spam Act and DNCR Act provide for the ACMA to liaise with regulatory bodies overseas about co-operative arrangements for the prohibition or regulation of relevant matters;

RECOGNISING that an Actknown generally as Canada’s Anti-Spam Legislation (“CASL”) authorises the CRTC to disclose information to an institution of the government of a foreign state in specified circumstances and under certain conditions;


I. Definitions

For the purposes of this Memorandum,

  1. “Applicable Law” means the laws and regulations identified in Annex 1, and such other laws or regulations as the Participants may from time to time jointly decide in writing to be an Applicable Law for purposes of this Memorandum.
  2. “Covered Violation” means practices that would violate the Applicable Laws of one Participant's country and that are substantially similar to practices prohibited by any provision of the Applicable Law of the other Participant's country.
  3. “Person” means an individual, a natural person, a body corporate, an unincorporated association, a partnership, a statutory authority or instrumentality of a government, existing under or authorised by the laws of the Australia or the laws of Canada;
  4. “Request” means a request for assistance under this Memorandum.
  5. “Requested Participant” means the Participant from which assistance is sought under this Memorandum, or which has provided such assistance.
  6. “Requesting Participant” means the Participant seeking assistance under this Memorandum, or which has received such assistance.

II. Objectives and Scope

  1. This Memorandum of Understanding is a voluntary agreement that sets forth the Participants’ intent with regard to mutual assistance and the exchange of information for the purpose of facilitating the investigation and enforcement proceedings concerning Covered Violations.
  2. The Participants do not intend the provisions of this Memorandum of Understanding to create legally binding obligations under international or domestic laws.
  3. The Participants understand that it is in their common public interest to:
    1. cooperate with respect to investigations and enforcement proceedings concerning Covered Violations, including sharing complaints and other relevant information;
    2. facilitate research and education related to unauthorised telemarketing, telephone calls and commercial electronic messages;
    3. facilitate mutual exchange of knowledge and expertise through training programs and staff exchanges, where opportunities may arise and priorities permit;
    4. promote a better understanding by each Participant of economic and legal conditions and theories relevant to the enforcement of the Applicable Laws; and
    5. inform each other of developments in their respective countries that relate to this Memorandum in a timely fashion.
  4. Further to these common interests, and subject to Section IV, the Participants intend to use best efforts to:
    1. disclose information upon request that a Participant believes would be relevant to investigations or enforcement proceedings concerning Covered Violations of the Applicable Laws of the other Participant’s country;
    2. provide investigative assistance in appropriate cases in accordance with domestic law;
    3. provide other relevant information in relation to matters within the scope of this Memorandum, such as information relevant to consumer and business education; government and self-regulatory enforcement solutions; amendments to relevant legislation; and staffing and other resource issues;
    4. explore the feasibility of staff exchanges and joint training programs;
    5. coordinate enforcement against cross-border Covered Violations that are a priority for both Participants;
    6. collaborate on initiatives to promote technical and commercially viable solutions to unlawful telemarketing and commercial electronic messages;
    7. participate in periodic teleconferences to discuss ongoing and future opportunities for cooperation; and
    8. provide other appropriate assistance that would aid in compliance activities and/or the investigation and enforcement against Covered Violations.

III. Procedures Relating to Mutual Assistance

  1. Each Participant is to designate a primary contact for the purposes of requests and other communications under this Memorandum. Notice of these designations and any subsequent changes is to be sent to the CRTC in care of the Chief Compliance and Enforcement Officer and to the ACMA in care of the Executive Level 2 Manager responsible for the relevant ACMA functions.
  2. If a Participant requests assistance for matters relating to investigations or enforcement proceedings concerning Covered Violations, then Participants understand that:
    1. requests for assistance must be made in writing (subject to clause III.B.2) and are to include sufficient information to enable the Requested Participant to determine whether a request relates to a Covered Violation and to take action in appropriate circumstances. Such information should include:
      1. a description of the facts underlying the request (including the conduct or suspected conduct which gives rise to the request) and the type of assistance sought;
      2. an indication of any special precautions that should be taken in the course of fulfilling the request;
      3. the purpose for which the information requested would be used (identifying the provisions of any relevant law or other legal basis for the Requesting Participant seeking the information, and the relevant regulatory functions to which the request relates);
      4. the sanctions or penalties that may be imposed (if any) in the event of law enforcement action; and
      5. the suggested time period for reply and, if the request is urgent, the reasons for the urgency;
    2. in urgent cases, a request for assistance may be made orally provided that the request contains the information set out in clause III.B.1 (if applicable) to be followed by a written request containing all the required information within 7 days, if possible;
    3. in conformity with CASL Section 60, which specifies that the arrangement contemplated in this Memorandum may only be made in respect of contraventions of laws of a foreign state that have consequences that would not be considered penal under Canadian law, information disclosed by the CRTC pursuant to this Memorandum and related requests for assistance are only to be used for the purposes of investigations or proceedings in relation to the Applicable Laws, noting that the penalties involved in relation to the Applicable Laws are civil in nature and would not be considered penal under Canadian law.
    4. civil penalties provided under Applicable Laws are not considered to be penal as that term is used in CASL section 60; and
    5. consistent with Section V.A., a request for assistance is to confirm that the Requesting Participant is to maintain the confidentiality of each request for assistance, the existence of any investigation related to the request, all materials related to each request, and all information and material provided in response to each request, unless the Participants reach a different understanding in writing.
  3. Participants should use their best efforts to resolve any disagreements related to cooperation that may arise under this Memorandum through the contacts designated pursuant to Section III.A, and, failing resolution in a reasonably timely manner, by discussion between appropriate senior officials designated by the Participants.

IV. Limitations on Assistance

  1. The Requested Participant may exercise its discretion to decline the request for assistance, or limit its cooperation. In deciding whether to decline a request, the Requested Participant will take into account whether it is outside the scope of this Memorandum or, whether the provision of the information, documents or assistance would or may:
    1. be inconsistent with the national or public interest, or with domestic laws, including relevant privacy laws;
    2. be beyond the statutory powers of the Requested Participant or involve dealing with the administration of a law that has no parallel within its jurisdiction;
    3. put the Requested Participant in breach, or at risk of being in breach, of a legal or equitable duty owed to any person (particularly in relation to the treatment of confidential information and personal information, or an obligation to afford procedural fairness);
    4. expose the Requested Participant to the threat of legal proceedings;
    5. place a strain on its resources or substantially or unreasonably divert its resources;
    6. impact adversely on any enforcement or compliance action being undertaken or contemplated by the Requested Participant.
  2. The Participants recognise that it is not feasible for a Participant to offer assistance to the other Participant for every Covered Violation. Accordingly, the Participants intend to use best efforts to seek and provide cooperation focusing on those Covered Violations that are most serious in nature, such as those that cause or are likely to cause injury to a significant number of persons, and those otherwise causing substantial injury.
  3. The Requesting Participant may request the reasons for which the Requested Participant declined or limited assistance.
  4. Participants intend to share confidential information pursuant to this Memorandum only to the extent that it is necessary to fulfill the purposes set forth in Section II.
  5. Where the Requested Participant requires the consent of a person, or is required to advise a person of the request before it is able to comply with the request, the Requested Participant will advise the Requesting Participant of this fact before contacting that person.
  6. The Requested Participant may provide information, documents or assistance to the Requesting Participant subject to any conditions that the Requested Participant considers appropriate, including restrictions or limitations as to the use, access or storage of the requested information or documents. Where the Requested Agency seeks to impose a condition it must advise the Requesting Agency in writing of that condition prior to providing the information, documents or assistance.

V. Confidentiality, Privacy, and Limitations on Use

  1. To the fullest extent possible, and consistent with their respective laws, each Participant certifies the confidentiality of information to be disclosed under this Memorandum, including the existence of an investigation to which the information relates. Subject to Section V.C, the Participants intend to treat the shared information, the existence of the investigation to which the information relates, and any requests made pursuant to this Memorandum as confidential, and do not intend to further disclose or use this information for purposes other than those for which it was originally shared, without the prior written consent of the Requested Participant.
  2. The Participants recognise that material exchanged in connection with investigations and enforcement may contain personally identifiable information. If the Requesting Participant wishes to obtain confidential information that includes personally identifiable information, then the Participants understand that they are to take additional appropriate measures to safely transmit and safeguard the materials containing personally identifiable information. Protective measures include, but are not limited to, the following examples and their reasonable equivalents, which can be used separately or combined as appropriate to particular circumstances:
    1. transmitting the material in an encrypted format;
    2. transmitting the material directly by a courier with package tracking capabilities;
    3. transmitting the materials by facsimile rather than non-encrypted email;
    4. maintaining the materials in secure, limited access locations (e.g., password-protected files for electronic information and locked storage for hard-copy information); and
    5. if used in a proceeding that may lead to public disclosure, redacting personally identifiable information or filing under seal.
  3. Notwithstanding Section V.A., nothing in this Memorandum is intended to:
    1. authorise a Requesting Participant to withhold information provided pursuant to this Memorandum in response to a formal demand from that Participant country’s legislative body or an order issued from a court with proper jurisdiction in an action commenced by the Participant or its government; or
    2. prevent a Participant from meeting requirements imposed under its national laws.
  4. Each Participant is to use best efforts to safeguard the security of any information received under this Memorandum and respect any safeguards decided on by the Participants. In the event of any unauthorised access or disclosure of the information, the Participants are to take all reasonable steps to remedy the unauthorised access or disclosure and to prevent a recurrence of the event and are to promptly notify the other Participant of the occurrence.
  5. The Participants are to oppose, to the fullest extent possible consistent with their countries' laws, any application by a third party for disclosure of confidential information or materials received from a Requested Participant, unless the Requested Participant consents to its release. The Participant that receives such an application is to notify forthwith the Participant that provided it with the confidential information.

VI. Changes in Applicable Laws

  1. In the event of significant modification to the Applicable Laws of a Participant's country that are within the scope of this Memorandum, the Participants intend to consult promptly, and, if possible, prior to the entry into force of such enactments, to determine whether to modify this Memorandum.

VII. Retention of Information

  1. Participants do not intend to retain materials obtained through this Memorandum for longer than is reasonably required to fulfill the purpose for which they were shared or than is required by the Requesting Participant's country's laws.
  2. The Participants recognise that in order to fulfill the purpose for which the materials were shared, the Participants typically need to retain the shared materials until the conclusion of the pertinent investigation for which the materials were requested and any related proceedings.

VIII. Costs

  1. Unless otherwise decided by the Participants, the Requested Participant is expected to pay all costs of executing the Request. When the cost of providing or obtaining information under this Memorandum is substantial, the Requested Participant may ask the Requesting Participant to pay those costs as a condition of proceeding with the Request. In such an event, the Participants should consult on the issue at the request of either Participant.

IX. Duration of Cooperation

  1. The Participants intend cooperation in accordance with this Memorandum to become available as of the date it is signed by the Participants.
  2. The Participants intend that assistance in accordance with this Memorandum is to be available concerning Covered Violations occurring before as well as after this arrangement is signed.
  3. This Memorandum may be discontinued, but a Participant should provide 30 days written notice of such discontinuation. However, prior to providing such notice, each Participant should use best efforts to consult with the other Participant.
  4. On discontinuation of this Memorandum, the Participants are to, in accordance with Section V, maintain the confidentiality of any information communicated to them by the other Participant in accordance with this Memorandum, and return or destroy, in accordance with any methods prescribed by the other Participant, information obtained from the other Participant in accordance with this Memorandum.
  5. This Memorandum may be modified by mutual consent of the Participants. Any modification is to be in writing and signed by both the ACMA and the CRTC.
  6. The Participants will review the operation of this Memorandum periodically and will consult for the purpose of reviewing this Memorandum at a time mutually agreed between both Participants.

X. Legal Effect

Nothing in this Memorandum is intended to:

  1. Create binding obligations, or affect existing obligations, under international or domestic law.
  2. Prevent a Participant from seeking assistance from or providing assistance to the other Participant pursuant to other agreements, arrangements, or practices.
  3. Affect any right of a Participant to seek information on a lawful basis from a Person located in the territory of the other Participant's country, or preclude any such Person from voluntarily providing legally obtained information to a Participant.
  4. Create a commitment that conflicts with either Participant’s national laws, court orders, or any applicable international legal instruments
  5. Create expectations of cooperation that would exceed a Participant's jurisdiction.

Signed at Australia on May 18, 2017, in duplicate:

Richard Bean
A/g Chairman
Australian Communications and Media Authority

Jean-Pierre Blais
Chairman and Chief Executive Officer
Canadian Radio-television and Telecommunications Commission
Ottawa, Ontario, Canada


Applicable Laws

  1. Australian Communications and Media Authority
    1. Do Not Call Register Act 2006.
    2. Spam Act 2003.
    3. Telecommunications Act 1997, Part 6.
  2. Canadian Radio-television and Telecommunications Commission
    1. 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.
    2. Telecommunications Act, S.C. 1993, c. 38 (as amended), section 41.
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