Canada's anti-spam legislation | BCBusiness
According to the federal government, Canada is among the world leaders in spamming, and it’s time to crack down. The problem is, almost all of us may be guilty
When Canada’s anti-spam legislation kicks into effect on July 1, a lot of businesses that don’t think it applies to them will likely be in for a rude shock.
The new law, known informally as CASL, or Canada’s Anti-spam Legislation, targets the usual spam practices, like automated harvesting of email addresses and mass mail-outs of deceptive advertising. However, the key provision that will affect most businesses is a prohibition against “sending of commercial electronic messages without the recipient’s consent.” In other words, any email, tweet or text message that might be deemed to be commercial in intent will be illegal if you haven’t got prior consent from the recipient. The penalties are huge: up to $1 million for individuals found guilty of spamming, and $10 million for companies. The law will be enforced by the CRTC, and in addition any person or organization can launch a lawsuit against someone they think is guilty of spamming.
As with all legislation, the devil is in the details, notes Chris Bennett, a partner with Davis LLP in Vancouver: “There are so many questions with this legislation that we don’t know the answers to at this point,” he says, including what constitutes a commercial message and how to determine consent, whether explicit or implied. “So I think the advice at this point is you better just assume that it’s spam if it’s got anything to do with marketing, which it probably does unless it’s an invitation for a bike ride.” And even that invitation could be considered spam, Bennett adds, if the ride is in any way related to work.
A tweet or email doesn’t have to be an explicit selling proposition in order to be illegal; it’s the intent that counts. According to the legislation, if one of the purposes of the message is “to encourage participation in a commercial activity,” then it’s spam.
So is networking now illegal? If you invite someone, electronically, to meet for drinks, how do you know that invitation might not be interpreted as intended to “encourage commercial activity”?
Questions of interpretation are murky in these early days, says Bennett, but on the question of intent, Industry Canada has made an attempt at clarification: “What they said was pretty vague but it was along the lines of, take a look at the email and take a look at the content, look at the links that are in it and try to determine from that whether one of the main purposes of the email is to encourage the recipient to participate in a commercial activity. And if that’s the case then it’s considered to be spam.”
There are, of course, exceptions. If the recipient exchanged business cards with you before you sent them a message, that would likely be considered implied consent to receive such messages. Similarly, if the person had joined your social network by “liking” or “following” you, or even if they had posted their email address on a website, according to the law they would have no one but themselves to blame for receiving electronic commercial messages.
Here’s the catch-22: you need to secure consent before you send a message that might be deemed commercial in intent, but by the time the law takes effect it’s too late to ask for that consent. “That’s the thing that’s going to blow people away,” comments Bennett. “You can’t send that email unless you have consent... but sending a request for consent by email is also considered to be spam, so you can’t do that either when the law kicks in.”