Companies that send email and other electronic messages need to start planning to ensure they’re on the right side of the law when anti-spam legislation goes into force in September.
That’s the message from Canadian lawyers who are closely following the anti-spam bill – Bill C-28 – which passed third reading December 14 and received royal assent the next day.
“Companies need to do a mapping exercise or figure out what communications they’re sending, who they’re sending them to and then making sure what they’re doing fits within the new act and regs,” said Paul Armitage, a Vancouver-based partner in McCarthy Tétrault’s technology group.
The legislation, which is geared at stopping Canada-based spammers, targets commercial electronic messages – a sweeping category that includes, among other things: email, text messages, instant messages, social media and automated voice messages.
Armitage said that while businesses need to watch for the bill’s regulations – expected in the next couple of months – to fully understand how the legislation will be applied, the general concepts are clear.
“The basic concept is, you can’t send a commercial message unless you have the consent of the person you’re sending it to,” Armitage said, noting that the legislation speaks of both express and implied consent.
“So in the future, if you’re a business and you want to send emails to someone and they’re not a current or active customer, you’re going to need to get an actual consent from them.”
Armitage noted that unlike American anti-spam legislation, which hones in on the substance of a message – whether it’s deceptive, for example – the Canadian legislation will encompass virtually all Canadian businesses.
“The average business might do something that seems fairly innocuous to them and doesn’t seem to be spam but could get caught technically as being spam under this legislation,” concurred Ontario-based business lawyer David Canton of Harrison Pensa LLP, co-author of Legal Landmines in e-Commerce.
But Canton noted that with penalties of $1 million for individuals and $10 million for corporations, plus a civil right of action, companies will need to take steps to make sure they comply. To do this, Canton said, companies need to assess their electronic communications and make changes to comply with the bill – adding an unsubscribe option to their correspondance, for example, or deleting non-active customers from their email list.
Bradley Freedman is a partner with Borden Ladner Gervais and the firm’s Vancouver office’s intellectual property and technology law practice leader.
Freedman noted that the act also holds businesses liable for the actions of a marketing company that’s sending out emails and other electronic communications on their behalf.
“Businesses have to make sure that they have a high degree of confidence that that marketing company knows what they’re doing, knows what the legal rules are, and complies with them,” he said.
That liability, Canton said, extends to a company’s directors and officers – a detail which may move organizations to write policies to demonstrate due diligence.
“It may lead to businesses and charities making policies and processes and training for their staff to make sure that a) nobody does this and b) if somebody does do it, that [directors and officers] can protect themselves a bit because they did what they could to stop it,” he said.
Besides the nuissance factor, Freedman said, he doesn’t anticipate the legislation will have a serious impact on how companies market themselves.
“I think that the legislation is pretty consistent with good commercial business practices that now exist,” he said, commenting that businesses have already been sending out emails with unsubscribe information for some time. “But this is really just regularizing it and making sure that the rules are clear and understandable so that the businesses know what they’ve got to do.”
As to the legislation’s likely impact on individuals’ spam-ridden email accounts, Armitage said it may reduce emails from legitimate businesses with whom individuals haven’t dealt in awhile, but won’t eliminate spam.
“There’s always going to be rogue spammers and things and people who are going to find ways to work around regulation,” he said, noting that studies of the United States’ Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 haven’t determined that it reduced spam.
Canton questioned whether the legislation will catch enough actual spammers to justify its impact on businesses and charities.
“It’s well-intentioned and it does give some real tools to deal with [spam],” he said. “But whether, in the end, it will make enough of a difference to justify the nuissance and pain that it puts on the vast majority of the businesses and charities out there, [doing things] that people would not consider spamming, I don’t know.”