The criticism against Canada’s anti-spam legislation extends beyond absurd claims about restrictions involving family and personal relationships. Indeed, much of the discussion has focused on the impact of the law on small and medium sized businesses. Barry Sookman catalogs a wide range of supposed concerns, most of which appear to envision a world in which the only way for a new business to develop a customer base is to obtain marketing lists and send unsolicited commercial emails to potential customers.
It is true that the starting point of the law is that businesses must have consent before sending commercial emails. Canada is moving to an opt-in world that gives consumers greater control over their in-boxes and will ultimately provide businesses with higher quality lists of people who genuinely want to receive their messages. Notwithstanding the default requirement for opt-in consent, however, the law contains numerous exceptions that are available to businesses of all sizes and which allow small and medium sized businesses to engage in active (and likely more effective) email campaigns. The exceptions include:
Openly available email addresses. Almost anyone that publishes their email address without a clear statement that they do not wish to receive commercial messages is fair game. The law allows for implied consent (implied in this case because they have published their email address without the notice) where:
the person to whom the message is sent has conspicuously published, or has caused to be conspicuously published, the electronic address to which the message is sent, the publication is not accompanied by a statement that the person does not wish to receive unsolicited commercial electronic messages at the electronic address and the message is relevant to the person’s business, role, functions or duties in a business or official capacity;
In other words, claims that new businesses will not be able to identify potential business contacts and contact them via email are false. The law allows businesses to develop a list of contacts and to send them relevant email messages provided the email is published without the do-not-contact statement.
Third party referrals. The new regulations have added a third party referral exception that represents a huge loophole in the law. It will allow businesses to greatly extend their networks without the need for additional consents.
Business to business emails. The law includes a specific exception for business-to-business emails that remove the need for further consent. This ensures that existing business relationships are largely unaffected by the law. The business-to-business exception covers email:
to an employee, representative, contractor or franchisee of another organization if the organizations have a business relationship at the time the message was sent and the message concerns the affairs of the organization or that person’s role, functions or duties within or on behalf of the organization;
All emails sent in response to a request, inquiry or complaint. The law includes an exception for inquiries or requests from customers exempting email “that is sent in response to a request, inquiry, complaint or is otherwise solicited by the person to whom the message is sent.” This exception removes the need for further consent.
Existing business relationships. Consent is implied for existing business relationships, which includes everything from having purchased a product or service over the prior two years to instances where a consumer has merely made an inquiry within the prior six months. Moreover, this exception is effectively extended for three years from whenever the law takes effect, giving businesses nearly ten years from when the bill was first tabled to ask for explicit consent. Until the explicit consent requirement kicks in, businesses with a relationship will be entitled to rely on implicit consent.
Non-business relationships. The law also implies consent for a wide range of “non-business relationships.” This covers donations to charities and political parties over the prior two years, volunteer work over the prior two years for a charity or political party, attendance at a meeting organized by a charity or political party, or membership in club, association, or voluntary organization. This exception is also extended for three years from whenever the law takes effect, giving those organizations nearly ten years from when the bill was first tabled to ask for explicit consent.
Purchase of existing business. The law extends the existing business relationship even when a business is sold. In other words, if you buy a business all their contacts and customers may be used by the new owner.
This is a very long list of exceptions for businesses of all sizes and hardly the catastrophe that some suggest. While it will require some businesses to obtain express consent or to modify marketing practices that were based on sending large scale unsolicited commercial email, the result should be better, more effective online marketing for businesses and greater control over their in-boxes for Canadians.