In a previous post, Evaluating the Industry Canada CASL regulations: why they are needed, I suggested that close scrutiny needs to be given to Industry Canada’s new draft Electronic Commerce Protection Regulations. CASL’s “ban all” structure makes it imperative that generous regulations be adopted to ensure that the goal’s of Canada’s new anti-spam/anti-malware law (CASL) are met. In another post, Evaluating the Industry Canada CASL regulations: how to assess them, I proposed a framework for assessing the regulations.
In this post I review the proposed regulations which define “family relationship” and “personal relationship”. They are important because without them, no person could legally send a family member or friend a CEM without first receiving express consent and without complying with CASL’s other requirements, formalities which are completely impractical and unnecessary in these settings.
The proposed regulations would define “family relationship” as follows:
“family relationship” means the relationship between individuals who are connected by
(i) a blood relationship, if one individual is the child or other descendant of the other individual, the parent or grandparent of the other individual, the brother or sister of the other individual or is of collateral descent from the other individual’s grandparent,
(ii) marriage, if one individual is married to the other individual or to an individual connected by a blood relationship to that other individual,
(iii) a common-law partnership, if one individual is in a common-law partnership with the other individual or with an individual who is connected by a blood relationship to that other individual, or
(iv) adoption, if one individual has been adopted, either legally or in fact, as the child of the other individual or as the child of an individual who is connected by a blood relationship to that other individual; and
Industry Canada provided the following background to this regulation.
The Act requires that the meaning of “personal relationship” and “family relationship” be set out in regulations to provide legal certainty as to which relationships will be excepted from the anti-spam provisions of the Act. The terms are clearly defined in order to establish limits and avoid legal uncertainty and to prevent potential spammers from exploiting these concepts in order to send electronic messages without consent.
The proposed Regulations define “family relationship” for the purposes of CASL in a manner that is in keeping with definitions in the Income Tax Act. They also specify that it is intended to refer to persons descending from a common grandparent, including aunts, uncles, cousins, nieces, and nephews.
Industry Canada suggests that the appropriate benchmark for defining “family relationship” should be “in keeping with definitions in the Income Tax Act.” However, the Income Tax Act’s rules related to families and family members are intended to foster the goals of that Act. For that purpose, a definition that intentionally narrowly restricts who is family may be justified. However, CASL’s goals are far different from those of the Income Tax Act. A statute that limits speech, especially between family members, should be generous in what is excluded in scope.
The average Canadian would consider family relationships that extend beyond first cousins to be part of their extended families. Yet, CASL treats these relatives as if they were strangers.
Individual Canadians could not imagine a law which makes it illegal to send messages to a second cousin, great uncle, or other relatives who are not lineal descendants without first obtaining an express consent. [i] Nor could they envision having to insert in every CEM sent to any such close family member their address and other contact information, offer an unsubscribe mechanism, and if the message is an SMS or similar message have a website, merely to send the message.
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.
Messages sent to relatives who are more distant than lineal descendants are unlikely to be the most damaging and deceptive forms of spam. There is no need to impair the optimal use of electronic messaging for messages between family members. In fact, it is hard to see how this narrow definition of family relationship could be characterized as reasonable, justified and proportionate so as to pass a Charter of Rights and Freedoms challenge.
One might have suggested that the extremely narrow definition of family relationship would be remedied by the definition of personal relationship. However that definition is so narrow, it would often not include extended family members.
The proposed regulations would define “personal relationship” as follows:
“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.
Industry Canada provided the following background to this regulation.
The proposed Regulations address stakeholder concerns about the definition of “personal relationship” in the previous version of the proposed Regulations. That previous definition required certain characteristics of the relationship, including that the people have communicated within the past two years and have met in person at some point in time. In the consultation, some stakeholders argued that the two-year time period was arbitrary, and the definition should extend to virtual relationships where the individuals have never met in person. The challenge in addressing both of these concerns is to ensure the definition remains limited to close personal relationships, as intended under the Act. These proposed Regulations eliminate the arbitrary time period and include virtual relationships by replacing some of the previously mandatory characteristics of “personal relationships” with factors to be considered in determining if a relationship is a “personal relationship” for the purposes of the Act. To maintain the balance and limit the risk that the personal relationship exemption will be abused, the Regulations allow individuals to express the wish not to receive commercial electronic messages from the sender, even if the people otherwise choose to remain friends.
The draft regulation artificially defines “personal relationship” with limiting factors that appear intended to restrict personal relationships to only “best friends” or “close friends”. Yet, the ordinary meaning of the term is much broader. Under CASL, many friends, colleagues, and acquaintances will not fit within the definition. This will result in situations ordinary Canadians would find surprising. For example, the definition might well exclude personal relationships
- where individuals know each other from working together closely in a business or professional setting;
- where individuals know each other from interacting in other settings including being members of the same club or association, or from sporting activities, or taking classes together;
- where a relationship is an old one but the friends have not stayed in constant touch;
- where a relationship is new;
where individuals are neighbors; or
- where the predominant communications are not in person.
While CASL is intended to be technologically neutral, the factor that examines if the parties have met in person still favours traditional relationships over virtual relationships.
Surprisingly, the following would all likely be illegal under CASL:
- E-mailing or sending a BBM message to your child’s teacher to ask him/her to tutor your child. A child emailing his/her teacher for the same purpose would also be illegal.
- A student e-mailing a student a year ahead to buy a textbook or a student trying to sell used textbooks to students in another grade.
- A mother sending out an e-mail to her daughter’s friend to ask her to baby sit.
- A child soliciting a parent of a friend to shovel snow or mow a lawn for some extra cash.
- A child sending out emails to invite neighbors to buy a glass of lemonade at his/her lemonade stand.
- A person e-mailing neighbors on the street asking for a donation to fight a planned development or environmental threat.
- A parent teachers group e-mailing a school principal encouraging him or her to purchase new equipment or learning materials or to do a renovation that would enhance their children’s learning or learning environment.
- A child e-mailing her parents friends to buy Girl Guide cookies or to sponsor her in a school event.
- Neighbors or acquaintances e-mailing each other to set up a carpool and to share the costs.
- E-mails sent out to acquaintances, colleagues, and business contacts asking them for sponsorship in a charitable event such as to raise money for cancer research or many other worthy causes.
- E-mailing an old friend who moved away and asking him/her to buy you hockey tickets so that both of you could see your home team when your visit.
- E-mailing an old friend you haven’t spoken to in a while to help find a job or to ask for a referral or to tell the friend about your new job (and the products and services it sells).
- E-mailing an old classmate to ask if he/she would be interested in investing in a new venture you are starting.
In fact, every e-mail to an acquaintance, colleague, or neighbor that is sent from an office email address could be found to be an illegal CEM if it merely provides a hyperlink to the sender’s employer’s Internet home page, if the guidance provided by the CRTC at a recent public meeting accurately interprets CASL.
Of course, it is possible that the sender of these messages might call each of these intended recipients to ask if they can send them these sorts of messages and provide all of the information prescribed by the regulations when doing so and also comply with the unsubscribe requirements. But it borders on the ludicrous to think this should be required.
It would also even be illegal to use an email address already in the sender’s address book to send a message to an old friend, classmate, or sports buddy asking for consent to send the intended message. Further, friends could not rely on the “conspicuous publication” or “business card exemption” in s.10(9)(b) or (c) unless they want to email their friend in their “business or official capacity”.
Since it is impossible, or virtually impossible, to send an SMS message without having a website to comply with the CRTC regulations, it would also be illegal for the sender to text (SMS) his or her acquaintance without setting up a website to include the information that the CRTC regulations require be included in CEMs. The senders, which would include children and other individuals would, shockingly, be forced to disclose their personal information to the public– information protected by PIPEDA – simply to send one of these types of messages.
A broader definition of personal relationship would not undermine CASL’s goal of deterring and protecting individuals from the most damaging and deceptive forms of spam. A restrictive definition is more likely to discourage and impair reliance on electronic means of communicating between individuals. Assuming individuals would even think to comply, it would impose additional and unnecessary restraints on ordinary individuals. It is also hard to see how this restrictive definition could be considered reasonable, justified, and proportionate so as to pass a Charter of Rights and Freedoms challenge.
As explained previously, CASL’s “ban all” approach to regulating CEMs, a term which is incredibly broad and open ended, will inevitably result in individuals, businesses, not-for-profit entities, educational institutions, charities, private clubs, and political parties and others finding themselves barred from communicating with others electronically. These inadvertent consequences need to be fixed. These fixes are not “loopholes”. However, for every fix that is recognized there are bound to be many others that are not, especially if the approach to the regulations is to make them narrow. The prudent course is to ensure that the regulations are generous enough to avoid more of these “inadvertent consequences”.
CASL’s CEM prohibitions are primarily intended to prohibit damaging and deceptive spam. They should not be targeted at extended families or at children promoting their lemondate stands.
[i] Descent are of two sorts, lineal and collateral. Lineal descent is descent in a direct or right line, as from father to grandfather to son or grandson. Collateral descent is descent in a collateral or oblique line, that is, up to the common ancestor and then down from him, as from brother to brother, or between cousins. Num v. Canada (Citizenship and Immigration), 2005 CanLII 62936, Burnaby Lake Greenhouses v. Her Majesty The Queen In Right Of The Province Of British Columbia, 2005 BCSC 1682.