The magnificent convenience of electronic communication should not be ruined by the nuisance known as “spam”: the indiscriminate bombardment of people’s e-mail inboxes. But the well-intentioned act of Parliament commonly known as Canada’s anti-spam law overreaches in more than one way, unduly weighing down electronic commerce, and potentially affecting many Canadian companies – including The Globe and Mail, in its interactions with readers.
CASL became law in late 2010, and will probably come into force this year, but its regulations – which could add some welcome flexibility – have not been definitively settled.
The core of the act is a prohibition against sending a commercial electronic message, unless the addressee has already agreed to receive it – either explicitly, in writing, or implicitly. The act limits that implied consent; by far the most common form it could take would be “an existing business relationship,” such as a continuing contract.
In the Internet age, that is a very narrow criterion. Large numbers of people may frequently visit a website without having a contract – such as a paid subscription. In order to do business in the 21st century, companies legitimately want and need to engage and communicate back and forth with their customers and their potential customers.
Acts of the U.S. Congress are often more drastic than their staid Canadian equivalents. CASL is an exception. Where the U.S. anti-spam law enables consumers to opt out of getting a company’s message, the coming Canadian regime requires companies to send people a request for permission to send them e-mails. And the companies won’t be allowed to ask that consent by e-mail; presumably, they will have to resort to the post office.
Moreover, the penalties can be huge: up to $1-million for an individual, and up to $10-million for a corporation – seemingly for each violation. All this adds to the already heavy regulatory burden on Canadian companies, putting them at a disadvantage to foreign spammers, the real culprits – who are untouched by CASL.
So far, the government’s draft regulations offer little or no relief from this draconian scheme. The apparent hesitation to proclaim CASL in force may be encouraging. The Canadian economy would benefit from a more balanced, accommodating approach to the commerce of the future.