Guest Post: Canada's New Anti-Spam Bill - Is Anyone Listening?

Today's guest post comes to us courtesy of Kevin Huxham, Director of Deliverability at CakeMail, creators of an email marketing application for small and medium-sized businesses, based in Montreal, Canada. Kevin has more than twelve years working in various email-related roles on both the sending and receiving sides of the industry. He has been around since the early days at CakeMail and helps clients manage their delivery, fight abuse, educates them on compliance, reputation and engagement. Prior to this he worked for 6 years at one of the largest ISPs in Canada. Rumour has it he also knows his way around the golf course and has a single digit handicap! Fire away, Kevin!

Bill C-28 or "CASL" (Canada's Anti-Spam Legislation) as it has come to be known, is looming on the horizon for a lot of email marketing folks North (and South) of the border, but a new study put out by Fasken Martineau DuMoulin LLP suggests there's a lot of people out there (57.6%), that don't even know it exists, let alone preparing for it.

Are we Canadians just too darn polite?
Should we strap on our skates and threaten to cut off our export of Maple Syrup?!

Let us hope it never comes to this.. but one thing is for sure, we aren't going to find out what people think without asking some tough questions.

Barry Sookman, a lawyer at McCarthy T├ętrault LLP said at a recent webinar event in Toronto, that he thought Canada's new anti-spam bill was "A great piece of toxic legislation." and that he foresees it "creating way more problems than it's going to solve."

Is he right? Is the sky going to start falling?

I first heard of C-28 back in April 2009 when it was called "Bill C-27" and apart from a few name changes, it has stayed surprisingly intact. The Bill was enacted in December 2010 and is scheduled to come into force early 2013, a full year after originally thought, but I'm proud to say I live in a country that has one of the toughest anti-spam laws in the world. Mind you, it's not going to do much good if nobody knows about it (even less if it's not enforced) but I'm not too worried about that. I imagine when a final date is set, it will start to get the press it deserves (especially in the US) and lawyers like Barry can all start lobbing sh!t at the fan.

What do YOU think about it?

Are you convinced this new bill is really going to help control spam?
How are you preparing for its enforcement? ARE you preparing for its enforcement?
Will marketers outside Canada really be affected?
How is this going to affect business in Can vs US?
Will it spawn other countries to follow suit and tighten their own anti-spam laws?

I'll admit, we may be the last G8 country to introduce a law to combat spam, but I think this new bill more than makes up for it (how/when it eventually gets enforced). It's not doing much good now, that's for sure..

If you operate or have customers in the U.S. market, you are likely familiar with the requirements of CAN-SPAM, but there are several key differences we should mention if you compare CAN-SPAM to CASL:
  1. Consent. CASL requires consent CAN SPAM does not ("Opt-in" vs "Opt out")
  2. Penalties. Up to $10 Million dollars CAD per violation (per email) and with a private-right-of-action we will see individual and class-action lawsuits. The FTC is the only body that can enforce CAN-SPAM and penalties are much less at $16,000 per violation.
  3. Reach. CASL doesn't just cover email, but all forms of online abuse such as installing computer programs, phishing, spyware, etc.. CAN SPAM only covers email.
Even before the Fasken Martineau study came out, I came to the very quick realisation that if I set out on the street of Montreal and asked a bunch of people what they think about Canada's New Anti-Spam Bill, I might hit 1 person out of 1000 that's even heard of it (if that). When I was asked to contribute to the blog, it gave me the perfect platform to start this discussion. So let's ask some really hard questions shall we?
Is CASL trying to take on too much?
Is it too encompassing? too restrictive? not restrictive enough?
Are the fines ridiculous?
Is the Private right of Action (that was deliberately built into it) going to be a mistake?
Whether you know it or not, CASL not only targets business in Canada but anyone sending Commercial Electronic Messages (CEM's) to Canadians. It was intended to promote e-commerce by deterring spam and other malfeasants like identity theft, phishing, Spyware, viruses and Botnets. It does this mainly by creating new offences, enforcement mechanisms and penalties to address these online threats. Given those abroad can easily send email to anyone in Canada (whether knowingly or not), I think this clearly answers our question about whether or not it's going to affect marketers outside Canada, but how will this process work? What kind of jurisdiction it will carry outside Canada remains to be seen.

According to the requirements set-forth in CASL, "SPAM" is considered any Commercial Electronic Message (CEM) sent without consent. Even the act of seeking consent is, in itself, a CEM and must comply with this new law so marketers need to be careful. If they cannot prove consent for their lists, or for some reason no longer have this information, it's time to get it.

For more information on CASL, to signup for updates, to get a list of Regulations and Key facts, I encourage everyone to visit:

A full report of the Fasken Martineau Dumoulin study can be found here.

Stay tuned…

-- Kevin
Post a Comment