Canada’s regulations to limit unwanted email messages from businesses have been four years in the making, but if organizations representing the business community get their way, it could unravel much faster than that.

Canada’s Anti-Spam Legislation (CASL) is set to come into effect July 1 and requires businesses to receive consent from consumers before sending them commercial messages via email or any other digital channel. But members of the business community and lawyers critical of the new law say the first organization fined by the enforcement regime will likely challenge it in court on the basis that it violates the Charter’s protection of free speech. In this case, it would be a limitation on commercial speech.

The new regime governing the sending of email and other so-called “commercial electronic messages” (CEMs – covering instant messages and social media too) is too strict, says Scott Smith, director of intellectual property and innovation policy at the Chamber of Commerce. Canada is one of the few countries to require an opt-in by the consumer to receive messages, instead of just allowing them to opt-out.

So what’s to be done?

Asked directly if he knew of any groups organizing a court challenge to CASL, Smith responded: “There’s been some discussion about that at the chamber … we haven’t come to any conclusions yet.”

Join us in Toronto May 22 to get CASL compliant:

CASL compliance event

CASL received Royal Assent to be passed into law in December 2010. But it’s taken years of consultation sessions held by Industry Canada and the Canadian Radio-television Telecommunications Commission (CRTC), several revisions made to the wording of the regulations, and a lot of waiting to finally come to the point where it will be actively enforced. Three government bodies will coordinate enforcement of the anti-spam bill: the Competition Bureau, the Privacy Commissioner of Canada, and the CRTC.

Anti-spam bill actually anti-free speech? 

Should CASL be brought to court on the basis it violates free speech, a judge would have to balance the consumer’s right to privacy against the commercial right to free speech, says Barry Sookman, a partner at Toronto-based McCarthy Tetrault LLP. While it’s clear that CASL does limit freedom of commercial speech in some situations, a judge could deem that those are reasonable limitations because they protect the privacy of would-be message recipients. If the legislation limits speech only to the extent that it needs to in order to meet its goals, it’s a good law. If it goes too far, then it infringes on the Charter.

For Sookman, CASL represents one of the biggest threats to free speech on the Internet in Canada.

“There’s nothing like it that has this much of a lockdown on speech,” Sookman says. “That’s why I say it won’t be able to stand up to a Charter challenge.”

Industry Canada says CASL will come into effect July 1 as planned and that lawmakers took the Charter into consideration when creating the legislation. In a statement emailed to ITBusiness.ca in response to a request for an interview, an Industry Canada spokesperson said that when Parliament passed the bill into law, they agreed that it was consistent with the Charter. (CASL received support from all three major political parties in the House of Commons.)

Other lawyers disagree. Michael Geist holds the Canada Research Chair in Internet and e-commerce law at the University of Ottawa. He points out the bill went through a vetting process that included review by Department of Justice lawyers before being passed into law. Opposition to the new law has been overblown, he says.

“There’s been an awful lot of hyperbole and exaggeration about CASL,” he says. “Rather than actually talking about what the legislation really involves … we get a lot of people up in arms about legislation that is far from the horror story that it’s made out to be.”

If CASL is challenged in court, Geist says it’s a more likely scenario that a judge would make smaller tweaks to areas where the law is overbearing, rather than throw out the entire piece of legislation wholesale. The law could be modified to add another exemption, for example, in addition to the exemptions already built in to the legislation.

CASL legislation a ‘bundle of spaghetti’

What could also be at issue with CASL is whether the law is clear enough. A court could test whether it’s reasonable to expect most businesses to understand exactly what messages they’re allowed to send without consent and when they need to obtain consent before sending a message. Privacy lawyer David Fraser characterizes CASL as convoluted and nonsensical.

“They’ve had to go back to the drawing board a number of times, but they didn’t just scrap it and start from scratch,” he says. “In a way it’s like a big bundle of spaghetti when you have to find out where the threads go.”

CASL is lowering the bar on what proof is required to fine organizations compared to other legislation, Fraser says. There’s terminology in the bill that’s not clearly understood, and other areas where the intent of the sender could make the difference between compliance and a violation.

Sookman agrees the law is too vague. “The legislation is in fact impossible to comply with in a perfect way,” he says. “In some cases its just technologically impossible to comply with it.”

He gives the example of sending a SMS message. The limited character length of those messages makes it impractical to notify the recipient of who sent it and how to unsubscribe in each individual message.

But Geist disagrees, saying the law is “perfectly clear” after being through three years of debate and consultation process involving business groups. “You get people that screamed for reforms and now because they get those reforms they asked for, it’s unclear?” he says. “That’s pretty rich.”

A coalition of 15 business associations including the Chamber of Commerce, Canadian Federation of Independent Businesses, Canadian Marketing Association, Information Technology Association of Canada, Canadian Bankers Association, and the Canadian Wireless Telecommunications Association have sent comments and official submissions regarding CASL to Industry Canada. A review of the law is planned for three years from now, thanks to a clause built into the legislation.

For now, businesses should be gathering opt-in consent from customers to send email communications to them, and they should ensure they are in compliance with CASL by Canada Day.

Share on LinkedIn Comment on this article Share with Google+
Around the Web
  • gisabun

    As a consumer, I don’t want any Emails coming to me that I didn’t request.

  • Bill___A

    It is up to the lawmakers to ensure that we are protected from this type of thing. I was just subjected to UNSOLICITED text messaging from an auto dealer that was “experimenting” with it. They claim to have had permission but did not. We need legislation to control this sort of thing so that people who are okay with it can get them and people who are not okay with it have some recourse.

    I might add that allowing businesses to send the messages and then “allowing” people to opt out is a huge time waste and a big aggravation.
    Consumers need to make it very clear that this is NOT okay to send information and then ask for people to opt out.

    The same thing needs to be ensured with telemarketing, mass mail and flyers.
    Businesses do have a need to advertise, but they should be forced to do it in ways which do not cost me money (text messages while travelling), do not jeopordize safety (leaving flyers at my home when I am not home..and leaving them so that they are not inside the mailbox but sticking out)- right by the “no flyers” sign and other such absurd behaviours.
    While we are talking about so called “rights” let’s talk about the right of people to be treated respectfully. I would rather have text messaging turned off than have it used by advertisers. I expect, in fact, that if there is any more text messaging advertising, I will do exactly that, shut it off.

  • BG

    Since when is it a free speech issue for me not to want to get tons of unsolicited email? Spammers are parasites.

  • DamOTclese2

    Which means that every victim of spamming parasites will need to file criminal charges against the spammers and file civil lawsuits for harassment — including the mental anguish that brings.

    If corporate criminals want to continue to spam people, every victim can sue them in a civil court, put the criminals out of business that way and set the lesson for other parasites.

  • ChanTO

    Not all corporations are big and evil. I am a corporation of one who started my business a year ago. In order for me to get clientele I need to send targeted emails to the right person, NOT SPAM. This is how business has been conducted for years, and now the gov’t is putting another nail in the coffin of small business owners.