Friday November 21, 2014

q Anti-spam law …Leaves businesses scrambling


New anti-spam legislation set to become law July 1, has many local businesses, large and small, scrambling not only to make sure they are in compliance, but just to understand it.

“We’re lawyers and we’ve been looking at the legislation for four-months, and we’re still figuring out stuff about it,” said Andrew Aguilar, who has co-authored a guidebook for businesses titled Internet Law Essentials: Canada’s Anti-Spam Law (CASL). “It’s not the clearest, most unambiguous law on the books.”

The 53-page law is officially titled: An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act.

Ostensibly, it is designed to stop spammers from inundating email users’ inboxes, social media accounts and devices with unsolicited commercial electronic messages (CEMs). However, legal experts say it is much broader than that.

“Don’t let the anti-spam title fool you,” Aguilar said. “This is a wholesale regulation of electronic communications involving any businesses for any business purpose. Don’t just think that, ‘I’m not a spammer so it doesn’t apply to me.’ I can’t think of a business in Canada that this wouldn’t apply to in today’s age.”

Juanita Polegi, executive director of the Yorkton Chamber of Commerce, thinks the legislation goes too far.

“It’s punishing everyone for a few who have overstepped the bounds of proper email etiquette,” she said. “I’m not sure it’s going to do anything to prevent the spam that comes in from international borders and I think it’s just creating a lot of unproductive work for a lot of businesses.”

Under the new law, it will be illegal for businesses to send emails, text messages, newsletters or other electronic messages of a commercial nature without the consent of the recipient. The sender must also be able to prove consent was given and it does not matter “whether the electronic address to which an electronic message is sent exists or whether an electronic message reaches its intended destination.”

After July 1, a message sent to solicit consent will also be illegal, according to Aguilar.

Any electronic communication will also now have to include an ‘unsubscribe’ mechanism and other prescribed content including the identity of the person who sent it, or the person who it was sent on behalf of, and how to directly contact that person.

The Canadian Chamber of Commerce has published a single page document to help businesses prepare. It encourages companies to review their processes, get consent for current mailing lists, start keeping records of consents, start including the prescribed information and stop sending electronic messages as a first point of contact.

The Yorkton Chamber has been working furiously to get its own house in order while also trying to get the message out to its membership.

“It’s meant that we’ve got one person devoted to this and it’s taken a great deal of her time and effort to get this information to the members and to receive their feedback or consent,” Polegi said.

“I’m concerned, number one, that some of the businesses have not taken the time yet to seek that permission and they could be not compliant come July first and that could create some severe difficulties for them.”

Penalties for running afoul of the law are fines of up to $10 million for corporations and up to $1 million for individuals within corporations.

There are exceptions in the law. These include messages to clients who have an ongoing relationship with a business, registered charities and political parties soliciting donations and business-to-business communications that are required by law.



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