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Does Canada's Anti-Spam Law Really Make It Illegal To Email a Step-Parent or Great Uncle? No.

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Tuesday January 29, 2013
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:

“personal relationship” 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.
Comments (6)add comment

Crockett said:

Got to love hyperbole
It is too common that, shall we say 'exaggerated', consequences are trotted out in an attempt to derail a threat to your own special interests. Yes, I am self aware enough to catch the irony, but as for Mr. Sookman it is somewhat comforting to see it sprout on both sides of the fence.
January 29, 2013

Barry Sookman said:

...
Michael, it might help if you read CASL and quoted me accurately. Nevertheless:

“Parents promoting their children's lemonade stands” would actually be illegal, depending on who it was promoted to. It is a CEM and the parent child relation provides no exemption when the CEM is sent to someone else.

Second cousins are not included in the definition of family relationship. Just Ask Andre Leduc from Industry Canada. He confirmed this in a recent speech.

Spouses are included, but divorced spouses are not included in the family relationship definition.

As I noted in my blog, some extended family members would not meet the subjective and narrow criteria of the personal relationship definition. I never claimed that none would.
Cheers
January 29, 2013

Michael Geist said:

@Barry Sookman
Barry,

I did quote you accurately. You state in your post that "A child that e-mails his/her step-parent asking for a loan to cover tuition would also violate CASL". That email is covered by the family relationship. As for the other extended family examples, I argue that a reasonable reading of the personal relationship exception would cover them.

As for the lemonade stand, you'll have to wait for tomorrow's post.

MG
January 29, 2013

w00t said:

Stay tuned...
Woot. An internet war of words between two lawyers. This just rox.

*Gets the popcorn*

Fight!
Mano-a-mano.
Only one will stand victorious.
Only one can survive.

Stay tuned for tomorrows blog post.

Surely there will be a counter blog. Right? Barry won't let the Doc call his posts outrageous and then just walk away. Or will he?

Stay tuned for the next exciting episode of how legal people with pocket protectors duke it out.

You two could probably charge an admission fee to see your next blog posts.
January 29, 2013

w00t said:

Another Lawyer writing of this
I noticed on Slaw.ca yesterday that David Canton is also writing a 5-part series on the Anti-Spam law.

He has two posts up so for out of 5.

The Anti-Spam Act – Part 1 of 5 – Introduction
http://canton.elegal.ca/2013/01/28/the-anti-spam-act-part-1-of-5-introduction/

and

The Anti-Spam Act – Part 2 of 5 – The definition and treatment of Spam
http://canton.elegal.ca/2013/01/29/the-anti-spam-act-part-2-of-5-the-definition-and-treatment-of-spam/

He gets into the family relationship, but doesn't go into step-kids and divorsed parents etc.

David Canton has a flowchart up on it in the second post.

Just figured i'd mention it since many people have eyes on the Can-Spam law and it's interesting to see different lawyers duke it out.
January 29, 2013

Attorney Online said:

...
You are one of my favorite authors of business law articles. Would you please write something to the section of business law articles on Attorney Online http://attorney-online.info/pu...articles/5 You can promote legal services in your articles. Moreover, Attorney Online has a free attorney directory, legal blog and news section, also absolutely free for publishing legal information.
January 30, 2013

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