Neil Schwartzman Starting Own Gig

1/25/11

By Ken Magill

Anti-spam expert Neil Schwartzman announced today he is leaving his post at email deliverability-and-security services firm Return Path to start his own consultancy.

“After a wonderful five-year run at Return Path Inc., my last day of employment with the firm will be January 31, 2011,” Schwartzman wrote in a blog post. “I am in the midst of starting up a start-up with a focus on helping companies to become compliant with Canada’s new anti-spam law, C-28.”

Canada passed C-28 in December. Under the law, businesses that send unsolicited commercial email to address holders in Canada face fines of up to $10 million (Canadian).

Unlike the U.S. Can Spam Act, C-28 requires marketers to have explicit permission before mailing to individuals unless there is a prior business relationship.

Also unlike Can Spam, C-28 gives individuals the right to sue firms they believe have spammed them. However, the Canadian court system has a loser-pays provision so it is considered unlikely C-28’s private right of action will be put into much use.

As executive director of the Coalition Against Unsolicited Commercial Email, Schwartzman has been a vocal advocate of C-28 and was instrumental in getting it passed.

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Posted by:
Date: 2011-01-25 17:43:33
Subject: "Loser-pays"

Declaring right to private action unlikely is probably a hasty conclusion.

Awards of costs in Canada are mostly discretionary, and to the extent that they are covered by court rules, vary from one jurisdiction to another.

For example the results of a survey in Ontario by the The Civil Justice Review states: "the median award of party and party costs is approximately $4,300."

(http://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/cjr/firstreport/cost.asp)

Considering that the statutory awards a plaintiff may claim are $10,000 per individual offense to a maximum of one million dollars per day, it is not hard to image that a determined plaintiff might view the possibility of a $5,000 award of costs an acceptable risk.