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Canada Anti-Spam-Law Debate Descends into the Absurd

2/5/13

By Ken Magill

It’s not like we needed any more evidence that Canada’s anti-spam law—passed in 2010, yet to go into effect—is an utterly absurd attempt to regulate a problem it will do nothing to solve.

And we certainly didn’t need more evidence that all it will do is hamstring law-abiding people and companies, possibly putting them in danger of severe penalties.

But boy did we get it.

Canadian lawyer Barry Sookman has been blogging about his country’s anti-spam ridiculousness.

According to Sookman, because of the way Canada has narrowly defined personal and family relationships for the purpose of exempting them, some senders of perfectly innocuous messages may find themselves unwittingly on the wrong side of the law:

“Under the proposed regulation, sending an email to your second cousin offering to sell a snow blower or a used baby crib would become illegal. (CASL has no de minimis exception.),” he wrote. “It would be illegal to send an email to a retired great uncle asking for an investment or business advice to help start-up a business. It would also be illegal for a divorced spouse to email her/his ex spouse asking for a loan to cover unexpected expenses or medical bills. The ex-spouse could also insist on unsubscribing from receiving emails asking for such financial help. A child that e-mails his/her step-parent asking for a loan to cover tuition would also violate CASL.”

Sookman continues with 14 examples of what he claims would likely be illegal under Canada’s anti-spam law.

Among them:

A student e-mailing a student a year ahead to buy a textbook or a student trying to sell used textbooks to students in another grade.

A mother sending out an e-mail to her daughter’s friend to ask her to baby sit.

A child soliciting a parent of a friend to shovel snow or mow a lawn for some extra cash.

A person e-mailing neighbors on the street asking for a donation to fight a planned development or environmental threat.

Law professor Michael Geist, an ubiquitous and tireless defender of Canada’s anti-spam law, argued on the Huffington Post recently that all of Sookman’s potentially illegal-family-email scenarios are just plain wrong:

“This a broadly-worded, flexible exception (arguably too broad) that surely covers relationships with extended family members, who will have had direct, voluntary communications, will have often have met in person, and would have common experiences,” Geist wrote. “Leaving aside the fact that no enforcement agency would ever contemplate taking action in these circumstances, they will not need to do so since the law already exempts such messages through regulation.”

First, let’s not leave aside “the fact” that no enforcement agency would ever contemplate taking action in these circumstances. Law enforcement agencies are always so reasonable and rational, right?

But even if Geist is correct and Canadian law-enforcement agencies apply its anti-spam law only rationally and reasonably, the law is still a dangerous mess. It gives individuals the right to sue, remember?

How can two attorneys who are presumably well versed in their country’s legal intricacies read the same law and draw such radically different conclusions? Because that’s what lawyers do all the time.

No one can possibly know whether Sookman’s or Geist’s interpretation of Canada’s anti-spam law is the more accurate one until the law is put into effect and applied.

And since it will do nothing to deter criminal spammers, it has only the potential to do harm.

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