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Canada's Screwy Anti-Spam Law Delayed?

5/8/12

By Ken Magill

Although it was expected to be in force by now, Canada’s anti-spam law has reportedly been delayed until sometime in 2013.

In the meantime, business interests are hoping regulators will clarify what is broadly seen as an incredibly complex, confusing and vague piece of legislation.

According to multiple reports, Industry Canada Minister Christian Paradis said the highly anticipated law would go into effect next year in a speech at the Canada 3.0 Digital Media Forum in Stratford, Ont. in April.

Passed more than a year ago, the law dubbed CASL has apparently been delayed as regulators work to issue clarifications and exemptions.

“Anyone who has tried to read through CASL’s provisions and the accompanying CRTC [Canadian Radio-television and Telecommunications Commission] regulations knows that they tend to raise at least as many questions as they answer,” wrote Margot Patterson, an Ottawa-based attorney with Fraser Milner Casgrain, last week in a blog post. “The CRTC is expected to issue information bulletins in the coming weeks to help clarify what is meant, and required, by some key elements of the regulations.”

Industry Canada is also expected to issue regulations in the coming weeks.

“Industry Canada has a second set of regulations and those are taking a bit more time,” said Bernice Karn, an attorney with the firm Cassels Brock and Blackwell who practices intellectual property law with an emphasis on technology. “We had thought it would have been April of this year when it was done.”

Karn said there are numerous troublesome aspects of the law.

“For one, it’s a very technical law and there’s no de minimis type of threshold, so technically speaking if you send one email contrary to this law, you could be caught,” she said. “Now probably one would not invoke the full measure of the penalty but it’s a possibility.

“There’s that and there’s very fulsome information that you’re supposed to put in every message that qualifies as a commercial electronic message in terms of contact information and how to unsubscribe, and very specific requirements that the regulations are setting out for consent and what that has to look like,” she said.

“If you have someone send email for you, you’re supposed to have fulsome information about them, as well,” she said. That and other requirements “make for a very long footer,” Karn added.

Another troublesome aspect of the CASL is that it requires senders of commercial electronic messaging to get permission in writing.

“So people are saying: ‘Well, how do you do it? Do you have to send them a letter?’” Karn said. “If they go to a web site that you set up … is that going to be sufficient consent? The draft regulations don’t seem to say anything about consent electronically. They talk about it being in writing and some people are worried writing means hard copy.”

The problems stem from the way Canadian legislators approached the issue, she said.

“They’ve taken this broad brush and said: ‘Thou shall not send any commercial electronic messaging, period,’” she said. “And then they decided to have certain exceptions and you have to work your way through the exceptions to see if you can possibly fit under any of them.”

Moreover, she said, only law-abiding companies will be affected by the CASL.

“Every legitimate business out there worried about this is going to great lengths and expense to try and comply,” Karn said. “Spammers who are located in who knows where don’t care. They weren’t going to comply anyway.”

And then there’s the private right of action included in the CASL giving individuals the right to sue.

While some have said Canada’s loser-pay rules will mitigate the likelihood of nuisance anti-spam lawsuits—which have been a cottage industry in the U.S.—Karn said she’s not so sure she agrees.

“Plaintiffs’ counsel that specializes in class-action lawsuits are going to be looking for large targets, maybe a financial institution,” she said. “If a large well-known company makes a slip and sends one email to thousands of people inadvertently, they’re going to jump on that.

“I think it’s going to be problematic and I think that’s why the government is taking its time,” said Karn.

So might there be some good news when all is said and done?

“I hope so, but we are way down the road on this,” said Karn. “The bill’s been passed. It’s not been proclaimed in force yet … It could sit there in suspended animation for a long time, but there’s a limit to what they can do with regulations. Regulations can’t change the whole structure and tenor of the act. They can refine certain aspects of it.

“There may be some good news but I’m not holding my breath,” she said.

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Terms: Feel free to be as big a jerk as you want, but don't attack anyone other than me personally. And don't criticize people or companies other than me anonymously. Got something crappy to say? Say it under your real name. Anonymous potshots and personal attacks aimed at me, however, are fine.

Posted by: Matt V - @emailkarma
Date: 2012-05-08 17:49:19
Subject: In Writing Clarified

The key thing missing here is that the "In Writing" requirement include digital signatures, as per existing Canadian legislation, and was expanded to include "oral consent" from an individual by the CRTC in their final regulations posted in March 2012 and most importantly only applies to “Express Consent”. Implied consent, which is what most marketers use now, which has a 2 year expiry and needs to be reinforced with an existing business relationship, or existing non-business relationship (see: Implied consent — section 6 of CASL) and has no “in writing” requirement. As for footers and contact information the requirements are not much higher than CAN-SPAM; the mailing address of the sender “and either “a telephone number providing access to an agent or voice messaging system, an email address or a web address of the person sending the message or the person on whose behalf the message is sent. All of these things can be easily built into your templates, and honestly should already be there as a best practice.

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