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Does Canada’s Anti-Spam Law Really Make It Illegal To Promote a Child’s Lemonade Stand? No.

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.

17 Comments

  1. Unsolicited Business Email
    So let me get this straight, if I as a small business user go through the yellow pages, visit the chamber of commerce site and other business associates to obtain a targeted list of potential clients. I can send those on the list a letter. I can cold call them. But what I can’t do is send them an email introducing my company and products. All three of those methods are considered valid marketing technics and are often used in unison. Email in Canada will become fairly limited in use if all ‘unsolicited email is banned’ .

  2. Mark: It’ll become of fairly limited use *to spammers*. Spammers are upset by this. Everyone else is quite happy. They’re going to be unhappy again when they realize quite how little impact this has on the amount of spam in their inbox. Spammers tend to be unethical, and have no moral qualms about violating the law.

    You seem to be unhappy. That might be because you’re a spammer.

  3. Business to Business
    Okay I guess I needed more information. Because business to business communication is exempt.

  4. Then again that doesn’t help me
    The exception only applies to business that you have a relationship with already so it won’t help with drumming up new business.

  5. I happen to know many neighbors’ email addresses, from discussion about community issues. I don’t think any of us considers this an invitation to commerce, though.

  6. How am I a spammer?
    I would only be a spammer in the context that anyone who sends out unsolicited email is a spammer. Even the people who meet one of the exemptions are still spammers. It’s a common marketing practise for a startup to prepare a list of potential clients and contact them. I am not sending mail to some random list of email address about male enhancement. I am sending business to business marketing communication to a targeted list. Which would be fine if they were all already clients but is not fine if they aren’t. As a startup, I only have 5 or so clients so the exemption doesn’t help me. Also these email are a one off introduction to my new business, if I don’t receive a response I don’t plan on contacting them again.

  7. Michael, while fair, your post speaks only in likelihoods and potentials. Without absolute or concrete understanding of what is and what isn’t permitted, all of the ‘likely’ or ‘unlikely’ implications don’t mean much. Without certainty there is still room for the promotion of a lemonade stand to neighbors, referring to the example above, to be in violation of CASL -isn’t there? So, isn’t it equally fair to say that the act has the supreme potential for over-reach and that, that over-reach is what is of concern? People could literally fall victim to its significant liability for doing normal daily things -communicating by whatsapp or bbm or sms as much as by email.

  8. Adam Wasserman says:

    Answer to Alex
    Nor should you. :)

  9. Devil's Advocate says:

    Marketers have always had their own dictionary
    Marketers always conveniently act like there is just no firm definition of “unsolicited” to guide them. As if!

    If it weren’t for marketing, we wouldn’t be having to go through so many hoops in an obviously futile effort to just enjoy our computers, our dinners, and our lives.

    If it weren’t for marketing, antivirus software would’ve been mostly unnecessary. Same for data mining, and we probably wouldn’t be scrambling to figure out what to do about all our information having been distributed (thanks to all these “trusted partner” arrangements), before most people even knew it was happening.

    The whole matter about anti-spam legislations wouldn’t even have started, had marketers not just assumed they could step all over the entire electronic ecosystem, no matter how intrusive they had to be to do so, and no matter how loudly they were told not to.

    Now we have marketers expressing their “concerns” about how anti-spam legislation is going to affect things, and how all the “grey areas” complicate some non-existent god-given right to be seen and heard, annoying everyone and anyone, and gather their info . Bullshit!

    The “grey areas” only exist in a marketer’s brain, as it denies not knowing what “unsolicited” means.

  10. technical solutions
    Firstly, I don’t like spam any more than anyone else. That said, does spam cause enough harm to warrant a more laws on the Internet, when the Internet is already under fire from Bill C-30, the new Copyright Act, and ISP abuses/non-neutrality?

    I see a difference between spam email, etc, and scams.

    I know M. Geist has been a vocal proponent of anti-spam legislation, but I tend to disagree with him in this regard. Furthermore, it seems at odds with his approach to copyright and “(un)lawful access”.

    Perhaps there is a common ground to be found by simply strengthening the more general privacy and anti-fraud (scam, etc) legislation, while leaving spam-filtering to software heuristics. I would consider a technical solution (leaving the power with the people) or a general solution (promoting individual rights) superior to adding yet another law to the laundry list of laws on the books any day, especially in the digital realm.

  11. I think the assumption that there is no prior consent underlies all the potential violations listed. Supposing that there is likely prior consent fails to address the substance of the issue being raised.

  12. Freedom of Expression
    Is spam not form of expression and as such entitled to protection under the Charter of Rights and Freedom 2(b)? Do you think someone will take a run at the constitutionality of the legislation?

  13. Devil's Advocate says:

    Re: Freedom of Expression
    @Paul:

    That argument has been made ad nauseum by many a major spammer, and none of the courts involved would hear it, and rightly so.

    Any “constitutional right” is limited by any others it infringes upon, regardless of what charter or constitution is at play. Also, public speech cannot circumvent private communications channels.

    Your right to sell me a cheese straightener ends at my right to control my private social accounts, webpages and mailboxes (whether electronic or otherwise), and your right to occupy the space needed to say it in person ends at my right to deny you access to my home or property.

  14. @DA
    DA said:
    “Marketers always conveniently act like there is just no firm definition of “unsolicited” to guide them. As if!”

    The FUD/BS being spread by the like of Sookman is no different than the FUD and BS spread by the Canadian Marketing association (www.the-cma.org) when the Do-Not-Call list came out.

    They wanted to be in control of that and I had Emails from them telling me to ignore Geist and so on. Everyone connected with the CMA got those Emails from them and the same type FUD that is being spread by Sookman.

    This is no different.

    Matter of fact I wouldn’t at all be surprised if Sookman got paid by the CMA to put up this FUD since they think they control all marketing forms of communications.

    This is history repeating itself with those in opposition of it saying anything at all to spread FUD.

  15. SOOKMAN AKA SHILL
    this was always my opinion.

  16. Business to Business
    To further my comments, the National Do Not Call List allows unsolicited phone calls to businesses. Why should CASL block unsolicited email to businesses? There’s a difference in a small business starting out sending out a introductory letter to potential business clients and associate. Sure technically it’s spam but by definition spam includes all unsolicited email of any type whether it’s a guy asking a girl out on a date who got here email from a mutual friend or a spammer sending out millions of email about a male enhancement drug. There needs to be fair rules and these rulls hurt small business in Canada.

  17. Cute
    A discussion on spam gets spammed.