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What Will Canada’s Anti-Spam Law Mean for Users and Businesses?

Long before sites such as Youtube and Twitter were even created, the Canadian government established a national task force to examine concerns associated with spam and spyware. The task force completed its work in May 2005, unanimously recommending that the government introduce anti-spam legislation (I was a member of the task force). Four years later, then-Industry Minister Tony Clement tabled an anti-spam law, which underwent extensive committee review before receiving royal assent in December 2010.

My technology law column last week (Toronto Star version, homepage version) notes that while most expected the government to quickly bring the new law into force, the regulation-making process became bogged down by an intense lobbying effort designed to sow fear, doubt, and uncertainty about the legislation. Business groups relied upon implausible scenarios to argue that Canada would be placed at an economic disadvantage, despite the fact that government officials were able to identify over 100 other countries that have similar anti-spam regimes. The lobbying was a partial success, however, as the regulations went through two drafts and three more years of delay.

Almost a decade after Canada started down the path toward anti-spam legislation, Industry Minister James Moore announced earlier this month that the regulations are now final and the law will begin to take effect next year. There will be still yet more implementation delays – the anti-spam rules start on July 1, 2014, safeguards on software installations begin on January 15, 2015, and a private right of action that facilitates lawsuits to combat spam will be delayed until July 1, 2017 – but it appears that Canada will finally get an operational anti-spam law.

What will the new law mean for Internet users and businesses?

For millions of Canadian Internet users, the law should provide them with greater control over their in-boxes since it is grounded in an “opt-in” approach that requires marketers to obtain customer consent before sending commercial electronic messages. The shift to opt-in consent will be felt across all marketing activities as consumers increasingly expect that their personal information will only be used with their prior permission.

The law is unlikely to eliminate all spam – no law can single-handedly accomplish that – but with several large Canadian-based spamming organizations operating within the country, enforcement agencies will now have the tools to bring legal actions that could yield multi-million dollar fines and grind spamming activities to a halt.

Canadian businesses will have to adjust to the new law, but most already maintain databases of opt-out consents and provide their customers with information on how they can unsubscribe from further marketing materials. The new law establishes some additional form requirements and shifts toward opt-in consents, but the fundamental need to actively manage personal information remains unchanged.

The most challenging aspect of the law may come from the myriad of exceptions that have been incorporated into the law and its regulations. For example, last week the government expanded the exceptions for business-to-business emails, for charities that send emails for fundraising purposes, for the first email sent as a result of a third party referral, for political parties and candidates, and for messages that respond to consumer complaints or inquiries.

There are numerous other exceptions available to businesses, but the simpler compliance approach will be to ask consumers for consent. The law includes a long phase-in period for existing consumer relationships, providing ample opportunity to obtain a consent that ensures businesses can use the personal information indefinitely (or until the consumer revokes their permission).

This suggests that the days of relying on “implied” or opt-out consent that gave business the power to use customer information without their explicit permission will soon be over. With the government emphasizing a “pro-consumer” approach, finalizing the anti-spam regulations represents a long-overdue win for consumers as Canada has become the last major developed economy to implement anti-spam legislation.

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6 Comments

  1. They’re not rushing into this, are they?
    Wow! I can’t believe we’re finally getting an anti-spam law. I mean, it’s hardly been 20 years since spam became a significant problem.

    That said, am I the only one in Canada that get’s very little spam from Canada? How does the Canadian government plan to have much effect on the other 99%.

  2. Will it be as effective as their do not call list?

  3. Mike Brassil says:

    What Will Canada’s Anti-Spam Law Mean for Users and Businesses
    The regulation-making process became bogged down by an intense lobbying effort designed to sow fear, doubt, and uncertainty about the legislation.

    Almost a decade after Canada started down the path toward anti-spam legislation, Industry Minister James Moore announced this week that the regulations are now final and the law will begin to take effect next year.

    http://www.canadiangrantsbusinesscenter.com/

  4. Misinformed
    Dear Michael,

    Thank you for your article and insight – everyone agrees we need to reduce spam. As 99% of all spam comes from outside of Canada – places like Russia, China, India, Argentina, Germany, and the good old USA – the CRTC has no ability to enforce its regulations. The cost to Canada to implement this is significant and very harmful.

    The implausible scenarios that you mentioned in your article are things like I can not email a potential client in Calgary and say I would like to set up a phone meeting and discuss their business while my many foreign competitors can without fear of repercussion. The directors of company are also personally liable for fines up to $10,000,000 – I have directors on my board and I am a volunteer director on boards of many start-up companies. I am now facing considerable risk if one of their interns send out an email to 200 people that did not give prior consent.

    In my business we have purchased valuable services from companies that have initiated contact through a cold email. My foreign competitors will still receive these offers and I will not.

    For a small business to implement the IT infrastructure to accommodate and protect itself is a considerable cost and for many companies it cost prohibitive.

    As this is a law, Canadian are compelled by the legal system to report any violations. If the average Canadian receives 100 unsolicited spam emails a week and 2 million Canadians comply with the law and report all of these violations – the CRTC will have 200,000,000 claims the first week. It is unlikely that will happen – however the law quite oddly written with that intent.

    There are numerous options and tactics to achieving reduced spam in Canada. Here are a few ideas:
    - Give a tax credit for purchasing spam filtering software.
    - Use the Canadian small business resources centers to teach people how to set up effective junk filters on their email systems.
    - Install network filters in the Canadian internet that detect and reduce spam

    As you mentioned the Canadian government will point to 100 other countries that have anti-spam regulation – and that is great. Can the government point to one country where the regulation has actually made a statistically significant difference (>1%) in the amount of spam received by its citizens? I will give you a hint – the answer is no.

    The true benefactors of Canada’s anti-spam laws are the special interest groups that moved this forward – the National Law Firms – and they are very excited with their recent victory in lobbying for this. They will gain at the expense of Canadian entrepreneurs and small businesses who do email marketing and provide valuable products and services – not the Nigerian mail scam, phishing, or other similar spam that plagues our nation.

    In summary, the Canadian Anti-Spam Legislation:
    – Will cost the Canadian government significantly to regulate,
    – Create significant costs for businesses to comply,
    – Reduce Canadian businesses ability to compete in Canada,
    – Create significant unneeded risk to board directors
    – Increase the number of lawsuits in Canada

    and most importantly

    – Have zero impact on the amount of spam that Canadians receive.

    If you have any facts that you could contribute that contradict anything that I have written, please provide them.

    Thanks,

    GS

  5. paul anderson says:

    pls accept this comment without your consent
    i run a small business. You should try it sometime.

  6. Small business owner
    The CASL legislation is ridiculous.

    Canada is not a significant global originator of spam, yet we now have the most onerous legislation in the world.

    This legislation will not reduce the amount of spam that is sent by spammers that already operate on the dark side.

    Companies that currently use best email practices (targeted, researched, relevant business contact) to communicate with prospects about new and innovative business solutions will have their email hands tied. They (like us) will cease reaching out to Canadian businesses. Canadian business people will receive fewer unsolicited emails (yah!) but will be less informed and have fewer opportunties to adopt new technologies and solutions in the marketplace.

    The legislation was passed by the Government of Canada, who operate Canada Post, who deliver thousands of pieces of printed spam (and earn a pretty penny by doing so) to my mailbox every year. Irony!

    The penalties are way out of proportion to the perceived crime. Who has ever or will ever experienced $1 million worth of suffering and inconvenience as the result of an unwanted email?

    Once the rights to legal action begin in 3 years, we will see the advent of the “Spam Hawks”, who will seize upon the great financial opportunity afforded by the receipt of anything even vaguely resembling an unsolicited email in order to launch a $1 million, or better yet, $10 million legal action against some poor business person or company that may have violated CASL, perhaps even by accident. Spam Hawking will generate a better ROI than ambulance chasing, or lottery tickets, and will courtrooms will be clogged with lawyers seeking their 30% of the judgments.

    There are plenty of other issues that provide evidence of this being a poorly-thought out piece of legislation, and a considerable over-reaction to a trivial matter (my inbox is crowded with unwanted messages, Oh, the Horror!) that can be and will be more effectively dealt with by more sophisticated anti-spam algorithms and technologies.

    The CASL is a huge waste of time and resources, and will eliminate many legitimate and relevant business outreach tactics.

    Shame on Canada.