Much Ado about Nothing: CASL Will Have No Teeth

old-man-no-teethIt’s been a long, long time getting there, but the last G7 country to jump into the anti-spam arena is about to enact what some have been calling the toughest legislation of its type in the world. The Canadian Anti-Spam Legislation (CASL) was passed in 2010, and at the time, people lost their minds over what appeared to be incredibly stiff penalties for anyone caught playing the Send button like a banjo.

The first touch point was the law’s interpretation of what constitutes e-mail spam. While Canada’s U.S. neighbors to the south have anti-spam legislation that requires users to opt out of e-mail spam, the Canadian version of the law states that it’s spam if the user hasn’t opted in. Combined with penalties of up to $1 million per infraction for individuals, and up to $10 million per infraction for organizations, the proposed legislation posed a major threat to some players, since most analysts contend that the law has enough gray area that people could be in violation of the law without intending to do so.

The Canadian government hasn’t said much about how far it intends to go in enforcing the law and levying penalties, so it’s only natural that people and companies – like Canada’s national newspaper, The Globe and Mail, are a little bit worried about the implications. But the government of Canada has dragged its feet for nigh on four years now, and it’s only been in the last few months that people have really started to worry, because the July 1st deadline looms large.

Well, we’re here to tell people not to worry about it. The law’s enactment date will come and pass, and it would be surprising if we began to see large fines being doled out like penalty minutes in hockey. But don’t take our word for it. Just ask the agency tasked with levying those penalties. The Canadian Radio-Television and Communications Commission (CRTC) is the public agency responsible for regulating communications in the country, and that includes the Interwebs. And they’re not waiting until the last minute to cover their asses.

The new federal anti-spam legislation requires that businesses get written or oral consent before they send emails or other digital messages to consumers, and the CRTC is setting things up just in case things don’t go according to plan. According to CTV News, David Fraser, a privacy lawyer, says that the law “has a whole bunch of exceptions and a whole bunch of not well-understood or well-defined conditions. It’s not user-friendly for business people, not by any means.” And CTV says that the CRTC is already warning people not to expect miracles. Manon Bombardier, the CRTC’s chief compliance and enforcement officer, says that the CRTC doesn’t “have the capacity to look at them all, it would not be efficient to look at them all, so we need to be strategic.”

One can’t blame them, really. Since it passed in 2010, the legislation has been hotly contested by big business across Canada, and the conservative government under Prime Minister Stephen Harper has caved to those businesses, watering down the legislation so many times (under the guise of ‘public forums’) that it’s not the same law that it pretends to be.

Michael Geist, a law professor at the University of Ottawa and the Canada Research Chair in Internet and E-Commerce Law has been pretty vocal about the whole thing, and admits that the law isn’t the tough guy it was when it was born. “Just about everyone in the process had to put a little bit of water in their wine, there was certainly a fair amount of compromise. It seems to me they’ve carved out quite a lot of space for correspondence that I think most people feel is legitimate, and have also given enough of a phase-in period for most businesses.”

And CTC reports that, “while Fraser says he’s heard rumblings that enforcement will be fierce, the CRTC says it simply doesn’t have the manpower to aggressively respond to every complaint.” But it’s still tough enough to have charities scrambling to avoid being penalized for doing what they do.

“Our objective is to secure compliance in the most efficient way possible and prevent recidivism,” says Bombardier. “If a warning letter can achieve that, that’s what will be selected. If it’s deemed insufficient to achieve that objective, then we may need to go with a more stringent tool.”

While Canada has been talking about it, the US, UK, Russia and Australia have been busting up spammers for years now. What remains to be seen is if the government in Canada really intends to use this law, or if it’s just a bait-and-switch game. So buckle up, kiddies. This could be an interesting ride, although it probably won’t.

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