Canada’s latest anti-spam legislation will do little, if anything, to put Nigerian spammers out of business – but it could do serious damage to small businesses in Canada and will put unnecessary curbs on the digital economy, say a number of experts and organizations.
It could also hurt charities and universities – any organization that sends an email or instant message that has a commercial intent but that doesn’t have the recipient’s consent.
The Canadian Anti-Spam Legislation (CASL) has some measures Canadians will welcome. It makes it illegal for any company to install spyware, for example, and bans email address harvesting and pharming (redirection to bogus websites using misleading links within emails).
But it’s the curbs on emailing with commercial purposes that worries Canadian businesses most, because the legislation requires express opt-in consent from recipients.
The law could have a dramatic impact on salespeople and charities that rely on emailed cold calls, because it would make it illegal to contact someone without his or her consent.
And the fines are significant: up to $1 million for an individual and $10 million for corporation.
“You can’t send that cold-call email out unless you have consent,” said Chris Bennett, a partner at Davis LLP who specializes in information technology.
“Arguably, pretty much any email that you send in business is potentially affected by it.”
The Canadian Radio-television and Telecommunications Commission (CRTC) passed the new anti-spam law in 2010, but it’s still being reviewed by Industry Canada.
A 30-day comment period ended last week with a flood of submissions from the Canadian Chamber of Commerce, Canadian Marketing Association, Canadian Wireless Telecommunications Association, Interactive Advertising Bureau of Canada (IAB Canada) and Coalition of Business and Technology Associations – all of them worried about the new law’s impacts on business.
Complying with the new law will be expensive because it will require new databases of contacts who have consented to receive emails.
“These one-time costs and all of the ongoing compliance costs and red tape will be particularly onerous for small businesses,” the Coalition of Business and Technology Associations writes.
The coalition also questions how the new law will curb spam from outside of Canada, which is where most of it originates.
“These are well out of the reach of the commission’s enforcement abilities and will not be addressed by treating all Canadians and Canadian organizations as if they were originators of spam, malware and spyware, as CASL does,” the coalition writes.
Michael Geist, a University of Ottawa law professor and telecom and digital media analyst, has written that many of the fears over the new anti-spam law are overblown.
The new law “contains numerous exceptions that are available to businesses of all sizes and which allow small and medium sized businesses to engage in active (and likely more effective) email campaigns,” he recently wrote.
For example, when emails are published – including on websites – there will be implied consent allowing that person to be contacted by email for commercial purposes.
But Barry Sookman, a lawyer at McCarthy Tétrault LLP specializing in Internet and e-commerce law, said a contact at a business might move to another job or change emails.
“If they haven’t posted who the new person is, you can’t (send an unsolicited email),” Sookman said. “If you want to go sell Costco some merchandise, you have to know who the buyer is. You can’t just send it to someone who’s listed and say ‘Tell me who the buyer is.’”
Text messages also covered under new law
Emails aren’t the only electronic message captured by the new law. So are SMS (short message service) – the kind you get from marketers or even your own telecom to notify you when your bill is due or that you are roaming.
The new law will requires mobile messages to include the identity of the sender, contact information and an unsubscribe mechanism.
That is more information than can be packed into the 136-character CSC (common short code) messages used by telecoms and marketers for mobile messaging and still provide useful information, according to the CWTA.
“As the amount of mandatory content increases, it becomes correspondingly more difficult to provide that content in a clear and meaningful way to the recipient,” the CWTA writes.
