As the launch of the Canadian anti-spam law neared last spring, critics warned that enforcement was likely to present an enormous challenge. Citing the global nature of the Internet and the millions of spam messages sent each day, many argued that enforcement bodies such as the Canadian Radio-television and Telecommunications Commission and the Competition Bureau were ill-suited to combating the problem.
My regular technology law column (Toronto Star version, homepage version) notes that in recent weeks it has become increasingly clear that the CRTC and the Bureau can enforce the law against companies that send commercial emails that run afoul of the new legal standards. Those agencies have completed three enforcement actions against Canadian businesses that point to the risks of millions of dollars in fines for failing to obtain proper consent before sending commercial messages, not granting users the ability to unsubscribe from further messages, or sending false or misleading information.
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Canada’s anti-spam legislation took effect at the beginning of the month, sparking a steady stream of critical opinion pieces calling it an absurd solution to a mostly non-problem or “ludicrous regulatory overkill.” The criticisms generally boil down to three claims: spam isn’t a big problem, the law is ineffective because most spam originates outside Canada, and the law is overbroad because it targets legitimate businesses alongside fraudulent spam. I think all three criticisms are wrong. This post addresses why spam is still a problem and how the law will help. A second post tomorrow tackles the broad scope of the law, arguing that it is better understood as privacy legislation that fairly apportions the costs associated with electronic marketing.
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With Canada’s anti-spam law now in effect, many are starting to ask about enforcement of the law. While no one should expect the law to eliminate spam, the goal much more modest: target the bad actors based in Canada and change the privacy culture by making opt-in consent the expected standard for consumer consents. The CRTC, the lead regulatory agency, has made it clear that the fear-mongering of million dollar penalties for inadvertent violations is not going to happen. Chair Jean-Pierre Blais recently stated:
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