John Kasich Trumped by CASL, Canada’s anti-spam law?

March 22nd, 2016 by Barry Sookman Leave a reply »

Last week I received several unsolicited emails including the one shown below asking for a donation to support Republican party leader hopeful John Kasich. The e-mail was sent without the remotest chance of there being an express or implied consent and without compliance with the prescribed information requirements of Canada’s much vilified anti-spam law, CASL.

kasich email

There is no doubt that Canadians have an important interest in who wins the US Presidential party nominations. Given the importance of the stakes, Canadian residents eligible to make a donation might have welcomed receiving the solicitation.

But, asking a Canadian for a donation to support a politician running to lead any political party, whether in Canada or the United States, is a commercial electronic message (CEM) that cannot be sent without consent. Further, unless there is already a recognized relationship, even asking for that consent is illegal in Canada. (These messages don’t fall into the narrow exemption in the IC Regulations that permits sending solicitations for contributions in support of politicians running for a Federal or Provincial office.)

Yes, John Kasich asking for financial support by emails to Canadians to help prevent Donald Trump from winning the Republican nomination is illegal in Canada. 

Canadians being rejected as contestants for U.S. games shows like Jeopardy because of CASL was a predictable consequence of this convoluted and draconian law.  I predicted ordinary Canadians would be deprived of sought after opportunities because of CASL before the law came into effect. But, making it illegal to solicit donations for important political choices that could effect Canadians is much more serious. Of course, these are only the tip of the freedom of speech chills wrought by CASL (a.k.a., Canada’s Anti-Speech Legislation).

Perhaps the new Government in Ottawa will use these recent events as a wake-up call to take a much closer look at CASL and kill or fix it.

Are there threats that should be addressed by a properly calibrated anti-spam law? Yes.

It is possible the e-mails I received weren’t sent by the Governor’s campaign. The e-mail might have been a scam sent using a false and misleading URL. (I sent an email reply to try and confirm the legitimacy of the e-mail and it bounced back. Further, the donation link in the email does appear to take you to John Kasich’s official website. I also sent an email to an address at the official website asking if the e-mail was legitimate and never got a response.) The public should be protected from these kinds of scams, if indeed this is one. But, are we?

Amendments were made to the Competition Act to make it illegal to knowingly or recklessly send a false or misleading statement in a locator (which includes a URL). But, the prohibition applies only where the message is sent for the purpose of promoting a business interest or the supply or use of a product. Using that provision might be a problem. 

Amendments were also made to PIPEDA to make address harvesting of electronic addresses illegal. However, this provision would only apply if the addresses were collected using a computer program that was designed or marketed primarily for use in generating or searching for, and collecting , electronic addresses. That provision might not apply.

CASL’s prohibition against sending CEMs without consent could have applied. But, because of the breadth and vagueness of the law, those portions of the Act are likely unconstitutional. CASL’s overreach thus undermines any protection one might have hoped for to provide redress for real threats.

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