Canada’s new anti-spam legislation comes into force on July 1, and I can honestly say that over the past few days I have never received so much unwanted e-mail. It’s coming from companies rushing at the 11th hour to have me opt in to their electronic communications.
It started with law firms, the most anally retentive of the bunch. Then public relations firms. Now government agencies and non-governmental organizations are starting to pile on.
So far, no operators of Nigerian e-mail scams or marketers of miracle weight loss pills have requested my consent.
The current barrage of what I consider legitimate contacts, however, has me tuning out. I’m not opting in, and not necessarily because I don’t want to receive these messages. It’s because I don’t have time to properly weigh so many requests that, at the moment of asking, are lower than low priority.
It’s a shame, as businesses will see their contact lists decimated. No wonder many legal experts are calling it one of the world’s most draconian – and ill-conceived – electronic messaging laws in existence.
More interesting is that the e-tsunami I’m experiencing is just a fraction of what, technically, I should be receiving. According to a member survey recently conducted by the Canadian Federation of Independent Business (CFIB), just 15 per cent of small business owners are “fully aware” of the new law, and 62 per cent have taken absolutely no steps to comply.
This inaction isn’t because of ignorance. It’s the result of bewilderment, uncertainty, and in some circumstances a lack of resources. Sure, large businesses are taking action because they have legal departments pushing them and they have the financial resources to attempt compliance, but even there, there is mass confusion.
The Canadian Radio-television and Telecommunications Commission has issued guidance, but it emphasizes this is “not intended to serve as legal advice.” It advises companies to obtain independent legal opinion, which would be great if the legal community had certainty itself. It doesn’t.
The only thing that is clear is that lawyers are going to make a lot of money, already overburdened small businesses will have to spend what to them is a lot of money, and the penalties for non-compliance are shockingly huge: Up to $1 million for a violation by an individual and up to $10 million for a business.
For comparison, the first time you get convicted for drinking over the limit while driving in Ontario you will get fined $1,000. If you steal someone’s car, expose genitals to a minor or get caught trafficking in LSD, the maximum fine is $5,000 on summary conviction.
Mind you, jail time is always a possibility on those examples, but you get the point. The potential of you being fined $1 million and your company $10 million for sending an unwanted e-mail – even one that allows for easy future opt-out – is like using a Tomahawk missile to kill that raccoon hunting for grubs in your lawn.
Here’s what some legal experts are saying about the new law:
· David Fraser, an Internet and privacy lawyer at McInnes Cooper, has called the law “onerous, complicated and cumbersome.” In an interview with the CBC he said a child e-mailing neighbours about plans to open a lemonade stand for charity would be considered a spammer under the law.
· Tim Murphy, chief marketing partner for law firm MacMillan and chief of staff to former prime minister Paul Martin, has called the law “bureaucratically ridiculous” and flagged it as a nightmare for business.
· Technology lawyer David Canton describes the law as overkill. “The significant amount of time, effort, and money that it will take for legitimate businesses and not-for-profits to comply with the act will come nowhere close to justifying any meagre benefit,” Canton wrote this week in his blog.
In other words, the law is supposed to go after sharks but what it’s mostly going to net are dolphins. Time and time again courts have struck down laws that are too broadly designed, particularly when they restrict constitutional freedoms – i.e. freedom of expression, commercial or otherwise.
This one appears on a path to failure.
Perhaps many businesses are counting on it. Why, after all, go through the time and effort and cost of becoming compliant with a law that’s destined to be challenged and will ultimately crumble under the weight of popular and court opinion?
The new law requires businesses to get consent to send e-mails of a commercial nature, broadly defined. On top of that, the business must keep detailed records of that consent and have a system in place allowing people to opt out in the future. The CFIB, citing feedback it has received from members, said the cost of compliance ranges between $30,000 and $50,000 for small businesses.
And it’s not just e-mail under the microscope. Text messages, instant messages, Facebook and Twitter messages – all sorts of social media communication are captured by the law. How to comply here is a mystery to me.
There are exemptions and distinctions – law professor Michael Geist, one of the few I can find who supports the law, has a good summary here – but all of it adds up to unnecessary complexity and excessive vagueness. The law is both overly specific and frustratingly broad. Figure that one out.
It defines spam as the “sending of unsolicited commercial electronic messages.” It doesn’t seem to matter that the commercial message in question is being sent to one, 10, 1,000 or 1 million recipients. If you don’t have that recipient’s consent, it is deemed spam in the eyes of the law.
Even if that message allows the recipient to automatically unsubscribe, it is still considered spam if there is no prior implicit or explicit consent.
The Oxford Dictionary defines spam as “irrelevant or unsolicited messages sent over the Internet, typically to large numbers of users, for the purposes of advertising, phishing, spreading malware, etc.”
In this regard, Canada’s Anti-Spam Law isn’t really a law designed to attack spam. It’s a law designed, intentionally or not, to scare and attack business.
To hell with that kid selling lemonade.
