Over the past couple of weeks, there have been a myriad of posts and articles criticizing Canada’s anti-spam legislation. According to some posts – primarily those by Barry Sookman – the legislation will stop family members from sending commercial email to each other, parents from promoting their children’s lemonade stands, and discriminate against charities and schools. Is this true? In a word, no. While there is little point in unpacking each of the many outrageous claims, over the next few days I’ll offer up a few posts on some of the crazier ones.
Today’s post focuses on the suggestion that families will be stopped from sending commercial messages to other family members. Sookman writes:
Under the proposed regulation, sending an email to your second cousin offering to sell a snow blower or a used baby crib would become illegal. (CASL has no de minimis exception.) It would be illegal to send an email to a retired great uncle asking for an investment or business advice to help start-up a business. It would also be illegal for a divorced spouse to email her/his ex spouse asking for a loan to cover unexpected expenses or medical bills. The ex-spouse could also insist on unsubscribing from receiving emails asking for such financial help. A child that e-mails his/her step-parent asking for a loan to cover tuition would also violate CASL.
Sookman’s suggestion that the child and step-parent email does not qualify as a family relationship is simply wrong as it is a marriage to a blood relative and therefore fits within the definition in the regulations. As for the remaining examples, assuming that there is a personal relationship with the second cousin, great uncle, and divorced spouse, all of these qualify for the personal relationship exception. The personal relationship exception covers:
â€œpersonal relationshipâ€ means the relationship between an individual who sends the message and the individual to whom the message is sent, if
(i) those individuals have had direct, voluntary, two-way communications and it would be reasonable to conclude that the relationship is personal taking into consideration all relevant factors such as the sharing of interests, experiences, opinions and information evidenced in the communications, the frequency of communication, the length of time since the parties communicated and if the parties have met in person, and
(ii) the person to whom the message is sent has not indicated that they no longer wish to receive any commercial electronic messages, or any specified class of such messages, from the person who sent the message.
This a broadly worded, flexible exception (arguably too broad) that surely covers relationships with extended family members, who will have had direct, voluntary communications, will have often have met in person, and would have common experiences. Leaving aside the fact that no enforcement agency would ever contemplate taking action in these circumstances, they will not need to do so since the law already exempts such messages through regulation. With the family on safe ground, tomorrow’s post will take a closer look at the lemonade stand and other neighbourhood activities.