Legal Commentary

Anti-spam move totes defences: Unfortunately it’s so broadly defined it will affect how many organizations conduct business

By David Canton

For the London Free Press – March 7, 2011

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The anti-spam bill — Bill C-28 — was recently passed, and will be in force this year. It gives new tools to fight spam, but unfortunately defines spam so broadly that it will affect how most organizations conduct business.

Businesses can’t just ignore the legislation. Remedies include fines of up to $1 million for individuals, $10 million for others, and private rights of action. Directors and officers can be liable if they authorized or acquiesced in the offence. Employers are liable for the actions of their employees acting within the scope of their authority.

The Act applies to the sending of commercial electronic messages that many of us would not consider spam. An e-mail to just one person you met at an event who you consider a potential customer may be considered spam.

The legislation starts with a broad definition of “commercial electronic message,” and says you cannot send such a message unless it fits within a specific exemption. It will be important to figure out the boundaries of “commercial activity.”

“Electronic message” is broadly defined to include a message sent via e-mail, instant message, phone, or “any similar account.” This encompasses forms of social media, depending on how the message is directed.

In some circumstances you can send the message, but must include accurate information about the sender, and a way to opt out of future messages.

Messages will not be considered spam if the recipient has consented to receiving the message. But it is up to the sender to show the recipient has consented if there is a complaint.

The Act has extensive provisions defining what amounts to explicit or implicit consent. It includes things we might expect, such as on-going business, personal or family relationships. There is also an exemption for “existing non-business relationships” which include donations, volunteer work, or memberships that have occurred within the last two years. Charities will need to review these provisions carefully, as they will affect how they approach prospective patrons, donors and volunteers. Also exempted are messages to those who publish their address or have provided you with their address — so long as the message is relevant. That means since my e-mail address is published on my firm’s website and other places, you may be able to e-mail me with anything relevant to the practice of law — but you won’t be able to e-mail me trying to sell me a trip. If I hand you my business card, the same applies.

So while the intention of the Act is to control what we all understand as spam, it has the potential to affect many things we may not consider spam. Similar to privacy legislation, this Act will no doubt lead to situations where we will consider it spam if we receive it, but not consider the same thing spam if we send it. Until we see drafted regulations, we aren’t sure what a typical organization must do to comply with the legislation. We will need to sort that out over the next few months.

Full post as published by eLegal Canton on March 07, 2011 (boomark / email).