Anti-Spam Law Is Ludicrous Regulatory Overkill

By Margaret Wente; The Globe and Mail, July 8, 2014

Under Canada’s new anti-spam legislation, Ms. Wainwright (and everybody else who sends e-mail) must now comply with a sweeping law that prohibits any commercial electronic messages sent without the recipient’s permission. The law’s intent – to banish spam from Canada – is entirely admirable. And people like Ms. Wainwright, who spoke about the matter recently with the CBC, are entirely eager to comply. But that’s not so easy.

“The legislation is written in a way that is unclear to a lot of us,” Kimberley Cunnington-Taylor, an Ottawa lawyer who advises charities and non-profit groups on the new law, told me. “It is very complicated and difficult to understand, even with legal training.”

Yoga studio owners are among the millions of small-businesses, charities and even (I’m not kidding) hockey moms who now have to worry about running afoul of the Canadian Radio-television and Telecommunications Commission. The anti-spam law is a ludicrous example of regulatory overkill. It hurts folks who, by any reasonable definition, aren’t spamming anyone at all. And it won’t touch the real offenders, such as those responsible for the estimated 98 per cent of our spam that originates outside Canada.

The law doesn’t even define spam or mass messaging. It simply refers to messages sent for any commercial purpose, even if a message goes to only one person, with no intent to deceive. The definitions of both “commercial” and “consent” are also exceedingly broad and vague. Take Ms. Wainwright’s yoga business. If she e-mails a client to remind her that she’s entitled to two more lessons before her membership runs out, is that a commercial message? If so, has the client properly given her consent to receive it? There’s only one way to find out. Call a lawyer! Which is precisely what a large number of flabbergasted people are having to do. As Ms. Wainwright told the CBC, “We would rather be spending our time with our customers than trying to figure out how to do this properly so we don’t get fined ridiculous fees.”

Ridiculous indeed. The fines are mind-boggling: up to $1-million for an individual or $10-million for a company that violates the legislation. Officers and directors of any organization can be held personally liable. Charities and non-profits are not exempt, and they may also have the most to lose. Their e-mail lists are their lifeblood, because that’s how they reach potential donors. But now, if they have not obtained express consent, they won’t be allowed to reach those donors. And that could put some of them out of business.

“The compliance costs are daunting,” says Ms. Cunnington-Taylor. Even lawyers can only guess at what you have to do to comply. And forget about getting clarity from the government – they haven’t sorted out this stuff either.

Barry Sookman, a lawyer with McCarthy Tétrault, thinks the law is not just a mess but is probably unconstitutional as well. Here are some examples he has cited of e-mails that would not be exempt from the consent provisions of the law: An e-mail from your niece asking you to help with her tuition fees. An e-mail from the kid down the block to all his parents’ friends, offering to mow their lawns. An e-mail from a friend’s daughter selling Girl Guide cookies to raise money for a school trip. An e-mail to your old university acquaintances telling them about your new business startup.

There’s also the matter of enforcement. The CRTC is supposed to enforce the law, and has already received thousands of complaints. But its resources, alas, are finite. It almost certainly is powerless to shut down the real villains – the Nigerian scammers, the Viagra peddlers and the people masquerading as my bank who want me to send them my credit card number. Besides that’s a criminal matter, not a regulatory one.

The law is a sledgehammer. It will harass the innocent and leave the guilty largely untouched. The only winners will be consultants and lawyers. On top of that, the problem it’s supposed to address isn’t really that important. There are things known as spam filters. They’re not perfect, but they’re not bad.

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You did good, getting this far.

You’ve read Margaret’s comments; now try mine…

It appears that, as long as I don’t offer a service or product for a fee, or ask for a donation (I guess I missed my window of opportunity? But you could date your cheque pre July 1?)

However, if you think that I’m violating the new law, please let me know.

Don’t forget, you can always have the option of having your name removed from the Sailing With Devious mailing list – just reply with subject “CANCEL”