Yesterday’s post on the fears associated with Canada’s anti-spam legislation focused on emails between extended family members. This post will examine personal relationships and the absurd claims that the current rules will stop everything from emailing a teacher to promoting a lemonade stand. Barry Sookman writes that the following would all likely be illegal under CASL:
- E-mailing or sending a BBM message to your child’s teacher to ask him/her to tutor your child. A child emailing his/her teacher for the same purpose would also be illegal.
- A student e-mailing a student a year ahead to buy a textbook or a student trying to sell used textbooks to students in another grade.
- A mother sending out an e-mail to her daughter’s friend to ask her to baby sit.
- A child soliciting a parent of a friend to shovel snow or mow a lawn for some extra cash.
- A child sending out emails to invite neighbors to buy a glass of lemonade at his/her lemonade stand.
- A person e-mailing neighbors on the street asking for a donation to fight a planned development or environmental threat.
- A parent teachers group e-mailing a school principal encouraging him or her to purchase new equipment or learning materials or to do a renovation that would enhance their children’s learning or learning environment.
- A child e-mailing her parents friends to buy Girl Guide cookies or to sponsor her in a school event.
- Neighbors or acquaintances e-mailing each other to set up a carpool and to share the costs.
- E-mails sent out to acquaintances, colleagues, and business contacts asking them for sponsorship in a charitable event such as to raise money for cancer research or many other worthy causes.
- E-mailing an old friend who moved away and asking him/her to buy you hockey tickets so that both of you could see your home team when your visit.
- E-mailing an old friend you haven’t spoken to in a while to help find a job or to ask for a referral or to tell the friend about your new job (and the products and services it sells).
- E-mailing an old classmate to ask if he/she would be interested in investing in a new venture you are starting.
The reality is that some of these examples are not even covered by the law without the need to delve into the regulatory exceptions. For example, the law only covers commercial electronic messages, which would likely exclude activities such as arranging a carpool. Commercial electronic messages require the encouragement of commercial activity, which the law defines as transactions, act or conduct that is of a “commercial character”. As anyone who has arranged a carpool for their kids can tell you, a reasonable interpretation of non-commercial carpooling would find that it does not meet that standard (even with “shared costs”).
The email from the mother to a daughter’s friend to ask her to babysit is actually an inquiry as to whether the daughter is available to babysit (the daughter’s friend is the service provider, not the parent) and subject to the inquiry exception. The law exempts commercial emails that are “sent to a person who is engaged in a commercial activity and consists solely of an inquiry or application related to that activity.” In the event that the email is confirming a prior arrangement, there is likely consent for the message or coverage under an exception for information directly related to an employment relationship.
There are other examples that likely involve prior consent, such as emailing a child’s teacher or school principal. Most of the remaining examples would be exempted by the personal relationships exception such as students emailing each other, old friends or classmates emailing one another, or neighbours exchanging emails.
The repeated reference to neighbours emailing each other is particularly odd. I know the email addresses of a few of my neighbours, but only the ones with whom I have a personal relationship. I am not aware of many neighbourhoods where everyone’s email address is widely known such that emails go out promoting lemonade stands or local advocacy. Rather, most of that information is disseminated in physical form, specifically because the email addresses of all your neighbours isn’t typically available. While there may be exceptions, those are likely instances where the community has actively requested the email addresses for use by the community (often going door-to-door), so those on the list have provided consent (or else it involves marketing companies linking various databases to map contact information on a geographic basis, which is precisely the kind of activity the law seeks to stop if there is no consent).
Applied to Sookman’s example, the lemonade stand concern makes little sense. Emails sent to people in the neighbourhood will invariably meet the personal relationship requirement (or have consent) since there is no other obvious way to obtain those email addresses. Without such a relationship or consent, the sender simply doesn’t have the necessary email addresses to send throughout the neighbourhood. So lemonade stands may be safe, but what of many other small and medium sized businesses? More on why the law does not represent a dire threat to those businesses tomorrow.