What Everyone's Missing on CASL
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.