Paper Claims CASL Unconstitutional; Hilarity Could Ensue
By Ken Magill
Canada’s anti-spam law, in effect since July 1, unconstitutionally tramples on Canadians’ right of free speech, argues a recently published academic paper.
If the paper’s argument is used in court and prevails, the results could be hilarious—in an unintentional, completely avoidable-disaster-its-authors-deserve kind of way.
CASL is “a disproportionate response to the growing problem of spam and electronic threats, and may have the reverse effect of its goal of increasing confidence in the use of the Internet to communicate and conduct business,” argues the paper published in the John Marshall Journal of Information Technology & Privacy Law.
“Although the Supreme Court of Canada has held that deference should be given to Parliament if it has chosen a reasonable solution to complex social problem. This is not one of such occasions,” said the paper written by Emir Crowne, associate professor at the University of Windsor.
The broad argument that spam is free speech has—in my opinion—been long refuted. It’s probably one of the few areas where anti-spammers and I are in complete agreement.
I am an absolutist when it comes to being free to express one’s opinions, especially reprehensible opinions. Inoffensive speech needs no protection.
So, for example, unlike Canadian lawmakers who have banned its importation, I believe The Turner Diaries—by far, the most foul book I have ever read; I won’t link to it so you don’t have to shower—should be legal to print and distribute.
But the right to disseminate offensive ideas does not translate into a right to force others to use their resources to produce and distribute the material. You can put what you want in your newspaper, but you can’t steal the paper and ink, force the printer to offer presses for free, or force distributors to deliver it without compensation.
Spammers use others’ resources to deliver their messages and, as a result, their activities should not fall under any country’s free-speech protections.
However, just because the argument against spam as free speech is philosophically easy to make doesn’t mean CASL passes muster under the Canadian Constitution.
According to Crowne, CASL fails to pass the Oakes Test, a test laid down by the Supreme Court of Canada in 1986.
“If one of the elements of the Oakes Test is not met, then the restriction is not justified and thus rendered unconstitutional,” the paper said.
According to Crowne, the Oakes Test comprises four elements: whether the law is of a pressing and substantial purpose; whether there is a rational connection between the purpose of the law and its objective; whether the law is minimally impairing in advancing its purpose; and a consideration of the overall proportionality between the objective and effects of the law.
According to Crowne, CASL passes the first two tests, but fails the third. And since it fails the third, considering the fourth is not necessary.
“CASL has been criticized for taking a ‘ban-all’ approach first and later adjusting and prescribing exceptions with regard to regulating CEMs [commercial electronic messages],” the paper said. “This method ‘starts from an approach that says commercial speech is illegal in this country, rather than from an approach that says let’s try and identify harmful speech.’
“Due to the negative effects stemming from a law that is overreaching, broad, and vague, many individuals and businesses may find themselves barred and restricted from communicating electronically with others also [sic] many legitimate marketing and communication practices would be rendered illegal.
“CASL is overbroad and resembles too closely to a complete ban,” Crowne concluded. “[O]verbroad restrictions, limiting more expression than is required to advance a pressing and substantial purpose, cannot be justified, and thus the goal should be advanced with a narrower law.”
Translation: CASL is far more onerous than it needs to be to attempt to reach its authors’ supposed goals and, as a result, should be struck down.
That CASL is needlessly overbroad and burdensome is not in question. It should be repealed for a slew of reasons. But the idea that it should be struck down under the concept of free speech is deeply troubling.
And, yet, very funny.
If spamming is ruled a constitutionally protected activity in Canada because of the overreach of CASL, the potential ironical effects of the most dumbassed anti-spam law in the world would be both hysterical and tragic.
Way to go, Canada.