Canada’s anti-spam law perspectives

July 7th, 2014 by Barry Sookman Leave a reply »

The first week under Canada’s anti-spam legislation (CASL) is nearly over. The media and blogosphere gave CASL a lot of coverage. Much of it was negative. Here is a summary of some of the highlights.

I was interviewed on The Current, Metro Morning, and CJAD Radio. The Current and Metro Morning radio shows also featured individuals who voiced concerns about CASL’s impacts on small businesses. Michael Geist was also interviewed on The Current. He defended CASL claiming it was not onerous for small businesses who were already collecting express consents under PIPEDA. Peter Nowak also defended CASL in a post in Canadian Business Why Canada’s Anti-Spam Law won’t harm small businesses.

Mark Joseph Stern writing for The Slate called CASL “deeply stupid” in an article called Canada’s New Anti-Spam Law Is Both Horrifying and Stupid:

Seen in the context of this headlong rush to trample speech and expression in the name of privacy, Canada’s new spam law isn’t that surprising. It is, however, deeply stupid. Because the law applies only to Canadian companies, it will reduce spam by just about 2 percent for the typical citizen. The law might be more effective if the United States agreed to play along and censor American companies’ advertisements. But the Supreme Court has consistently held that the First Amendment protects advertisers’ rights to get their information across to potential consumers—even if nobody wants to hear what they have to say. A law so broad as to capture virtually all email advertisements in its sweep would never pass constitutional muster. (The United States does have anti-spam laws of its own, but they are, by necessity, much more narrowly tailored.)

Mark Goldberg wrote an article CASL costs consumers in which he pointed out that CASL’s significant compliance costs will be passed on to consumers along with reduced competition and reduced market knowledge.

If there are consumers who believe that CASL is worth the costs of compliance for Canada’s business community, I wonder if they understand the costs that are ultimately being borne by them? The direct costs will ultimately be passed on to Canadian consumers, as will the costs associated with reduced competition and reduced market knowledge.

Our government has imposed yet another impediment to the adoption of e-commerce and information technology in Canada. It is another contributor to lower levels of competition across the board in Canada’s economy.

Jeffrey Graham wrote an op-ed in the Financial Post questioning why CASL’s provisions had to be applied across the board to all Canadian organizations. In the article We need a better spam law — one that won’t cost hundreds of millions he stated:

…there is little reason to think that the vast majority of honest law abiding Canadian individuals and organizations, both for profit and not-for-profit, that send electronic messages (e.g., emails) that are in some way promotional (called commercial electronic messages), and therefore are subject to CASL, need to be heavily regulated by government.

Terence Corcoran wrote a powerful opinion piece published in the Financial Post labelling CASL a “Spamaflop” and “a Monty-Python-esque farce”.

Another way of looking at the anti-spam law is to set it back half a century.  It’s a law that cannot distinguish between a thief breaking into your home and the Fuller Brush man and the Avon Lady knocking at your front door to sell you brushes and makeup. It’s a Monty Python-esque farce.

Derek From, a staff lawyer with the Canadian Constitution Foundation noted that CASL’s adverse impacts on charities was due to its “ban all” structure that “is the inverse of what sensible legislation does” in his article  Canada’s Anti-Spam Law Punishes Charities:

Effectively, what [it] does is make all non-personal electronic messages illegal, unless you can find an exemption somewhere in the CASL or its regulations. This is the inverse of what sensible legislation does. Sensible laws target bad behaviour, not render all behaviours bad until proven good. Also, a single email sent to a single recipient can run afoul of the law because there is nothing in CASL saying that spam must have multiple recipients, multiple iterations, or the like.

The consequences of this prohibition will be particularly burdensome for charities. CASL contains no definition of “commercial”, instead defining a “commercial activity” as deeds performed with or without the expectation of profit — even though a dictionary will confirm that “commercial” is inherently tied to the expectation of profit. And as a result, we are left to ferret out for ourselves CASL’s idiosyncratic use of “commercial”.

Imagine Canada provided some background on the CRTC FAQ on how it will apply CASL to charities in the blog post CRTC releases anti-spam guidance for charities:

We will monitor the implementation phase of the legislation and its impact on charities and will continue our constructive dialogue with Industry Canada and the CRTC, as new information or concerns come to light in the weeks and months ahead. We wish to thank all of our partner organizations for their assistance in getting the word out to charities across the country or for sharing their concerns and questions with us to better inform our efforts on this file.

Even with the clarification, CASL still poses significant challenges to charities and not for profit organizations as I pointed out in the blog post CASL enforcement against charities clarified by CRTC.

For more information about CASL, see, CASL: the unofficial FAQ, regulatory impact statement, and compliance guideline

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