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Ken Magill

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What Everyone's Missing on CASL

7/15/14
 
By Ken Magill
 
Every time I see someone has written how straightforward compliance with Canada’s new anti-spam law is, I want to grab the nearest big city phone book and wallop them in the backs of their heads a few times while shouting: “How do you know!”
 
They don’t know. They don’t have a clue. No one does.
 
What so many people seem to be missing in the CASL debate is that whenever a new law is enacted, it must be interpreted [by flawed humans] and applied [by flawed humans]. As a result, government should always be the weapon of last resort.
 
How strictly will the Canadian Radio-television and Telecommunications Commission enforce CASL? Who knows? Bureaucrats are restrained by budget, not by reason. 
 
Bureaucrats don’t earn promotions and raises by failing to act. They certainly don’t see themselves as a weapon of last resort who should act only when all other remedies are proven failures. They’re hammers and every entity in their jurisdiction is a potential nail.
 
Then there is the unpredictable variable of judicial rulings. When CASL cases go to court, what rulings will result? What precedents will they set? Who knows? It all depends on the proclivities of the judges who hear the cases, and what they know and what they don’t know about email.
 
Already there has been dispute over whether or not a transactional message is a commercial email under CASL because of one poorly written sentence. What other poorly written sentences does this law contain that will create effects its authors never intended? Again, who knows? And we shouldn’t have to find out. But we will.
 
Those who are sanguine about CASL are doing the legislative equivalent of seeing an infant with a loaded handgun and predicting he won’t pull the trigger, or if he does, predicting he’ll only hit those who deserve it. Their confidence that law enforcement and the courts will do the right thing is stunning.
 
One of my primary life goals is to complete it without ever getting entangled in any country’s legal system on any level. I have already instructed my 11-year-old son never to agree to be interviewed by the police. If you think I’m being extreme, watch this. Even if you don’t think I’m being extreme you should watch this anyway.
 
Once someone gets the law involved, the situation is completely out of their control and can and probably will go in ways they never envisioned.
 
Getting the law involved should be done by necessity only. In the case of CASL, it wasn’t remotely a case of necessity.
 
And even if we could trust law enforcement officials and judges to act reasonably and intelligently, CASL has another landmine in a provision giving individuals the right to sue starting in July 2017.
 
I have been assured that Canada’s loser pays rule will mitigate any frivolous lawsuits. I am not convinced. Who’s to say there’s not a deep-pocketed anti-spam activist out there willing to take the risk? And who’s to say frivolous anti-spam lawsuits will be decided correctly resulting in the proper part being required to pay? No one.
 
Am I arguing against passing any new legislation ever? Of course not. But CASL was extremely badly thought out. 
 
The law is a multi-pronged potentially lethal weapon aimed at senders who are not the problem. 
 
Anti-spammers are fond of saying the crafters of CASL looked at all the existing anti-spam laws in the world and wrote CASL with their flaws in mind. But more restrictive and more punishing does not necessarily equal better.
 
A bunch of folks are also referring to CASL as “consumer friendly.” I know of at least one international marketer who is scrubbing his email list of Canadians where he can identify them. So a law that has companies frightened to do business with Canadians is “friendly” to them?
 
CASL is so loaded with landmines it’s difficult to imagine it failing to blow up on some organization that maybe did something a little stupid, but something that no reasonable person would deem an act damaging enough for the state to step in and attempt to repair.
 
But then too many folks put far more faith in the state than it has historically shown it deserves. And too many folks think the state is the first place they should turn when something annoys them.
 
The people who helped push CASL through should have been more careful what they wished for.
 
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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: Ken Magill
Date: 2014-07-16 11:27:37
Subject: Defining the crime

Hey Dela I just read Frady's piece and agree completely. I have long said if you want to legislate permission, you must legally define it. And the people setting those definitions may or may not know a thing about the subject, which is why law should be a tool of last resort. CASL supporters--some of whom I know and respect-- are deeply naive.
Posted by: Dela Quist
Date: 2014-07-16 10:37:07
Subject: CASL - an open invitation to litigation happy Spam Trolls

Hi Ken As you know I couldn’t agree with this more. What is even funnier and a point you have made before and Bob Frady has pointed out today on the only influencers blog http://bit.ly/1wuOHgw and worth a read. CASL does not define either the crime or compliance, which is why the dangers of how they might be interpreted and an open invite to litigation happy “spam trolls” they felt the act needed to “define” family and personal relationships!!! see below The Act requires that the meaning of "personal relationship" and "family relationship" be set out in Regulations to provide legal certainty as to which relationships will be excepted from the anti-spam provisions of the Act. The terms are defined in order to establish limits and to prevent potential spammers from exploiting these concepts in order to send electronic messages without consent. The Regulations define "family relationship" for the purposes of CASL in a broad manner that is in keeping with Canadian law. The definition is a relationship between two people related through a marriage, a common law partnership, or any legal parent-child relationship, who have had direct, voluntary two-way communications. The Regulations define "personal relationship" for the purposes of CASL. The definition is a relationship between two people who have had direct, voluntary two-way communications where it would be reasonable to conclude that the relationship is personal. Determining whether the relationship is personal would be based on a non-exhaustive list of factors provided in the Regulation. Taken from Canadian Govt site http://bit.ly/1rfRnRf IMHO a law about email that requires a definition of a family or personal relationship to be workable is bad
Posted by: rd
Date: 2014-07-15 16:38:24
Subject: canadian response

Laws like this are usually intended to benefit major corps and weed out the little guys. Instead it has just produced mass insanity at all levels. As a Canadian, I have been sent many "please re-opt in by July 1 or we'll delete you" messages. Surprisingly, I have seen all variance. Some companies have got it right - Costco for example did not send me anything, as I am already a customer. Some have not - One of my large suppliers who I have been a long time customer, deleted 90% of their email list on July 1, even though they did not legally need to. Lets find out how much business they lose because of their own knee jerk reaction. Personally, out of principle and protest, I have only re-opted into a couple of the requests I have received. The enterprising ones offered at least an incentive, a draw for something for the re-optin crowd, most did not and used fearful text that would not incite most people to act. I hope that the massive and catastrophic drop in lists, engagement, and results, wakes business up to realize that this law is of no benefit to them. Collectively then to put some pressure on for adjustments. I agree with your view of gray area enforcement. The CRTC will only go after targets that are politically motivated, or to protect the interests of Big TV/Radio/Internet which is the CRTC's (un)stated purpose. For most people, especially small one person businesses, their risk realistically is close to nil. My opinion is that as long as you're not selling common spam target product, or anything that isn't politically correct, you'll be fine. You have more risk getting arrested for jaywalking. It will be a different game once there is precedent, case law, or even direct policy statments issued. Stay Tuned. Anyone else from Canada have different experience/thoughts so far?

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