CASL: Hate to Say it, but…

After much ado about nothing, the Canadian Anti Spam Legislation (CASL) finally woke up on July 1st and discovered that it was a real boy. In case you were living off world for the past few years, the law, which was ratified by the Canadian government in 2010, lay in stasis for nearly four years while the lobbyists, bureaucrats and politicians could figure out how to unmake what they had made. You see, someone got the great idea to make tough anti spam laws, but no one stopped to think about the ramifications until the law was actually a done deal.

It took that long for corporations to beat away at the Canadian government, and even then, the end result was a confusing mishmash that only seemed to get worse as the go-live date of July 1st neared. Only days before the launch, small businesses, charities, businesses, government agencies, corporations, and even aunts and uncles panicked, trying to figure out how they could immunize themselves against the tremendously stiff penalties of CASL. Even the Canadian Radio-television and Telecommunications Commission (CRTC), the agency tasked with enforcing the law, admitted that they didn’t expect to be very effective.

So with all the hullaballoo surrounding the launch of CASL, it’s hardly surprising that, a mere few weeks later, the fallout is tremendous and telling in the way it’s playing out. One only has to Google CASL to see what’s happening north of the US border. Only days after the law went live, the CRTC reported that it was receiving about 1,000 to 2,000 complaints a day. According to Canada’s national newspaper, The Globe and Mail, Canadian companies themselves continue to send spam. The confusion appears to be ongoing, too, and the newspaper reports that  while “the law is designed to curtail unsolicited advertising messages that can crowd consumers’ inboxes…marketers and legal experts have complained that the law is set up in a way that makes it expensive for businesses to comply, and that it does not affect the worst spam offenders, who are often offshore and difficult to pin down.”

In a separate article, the newspaper also writes that CASL is ‘regulatory overkill,’ and that the law is confusing even the lawyers. Kimberley Cunnington-Taylor, a lawyer who advises charities and non-profit groups, tells The Globe and Mail that, “The legislation is written in a way that is unclear to a lot of us. It is very complicated and difficult to understand, even with legal training.” A large part of the problem appears to lie in the vague wording outlined in the act. “The law doesn’t even define spam or mass messaging. It simply refers to messages sent for any commercial purpose, even if a message goes to only one person, with no intent to deceive. The definitions of both ‘commercial’ and ‘consent’ are also exceedingly broad and vague.”

The problems for the law don’t even stop there. According to the newspaper, at least one lawyer believes that CASL is illegal under the Canadian Constitution. “Barry Sookman, a lawyer with McCarthy Tétrault, thinks the law is not just a mess but is probably unconstitutional as well. Here are some examples he has cited of e-mails that would not be exempt from the consent provisions of the law: An e-mail from your niece asking you to help with her tuition fees. An e-mail from the kid down the block to all his parents’ friends, offering to mow their lawns. An e-mail from a friend’s daughter selling Girl Guide cookies to raise money for a school trip. An e-mail to your old university acquaintances telling them about your new business startup.”

The Vancouver Sun writes that the law does little to nothing in the way of resolving what it was intended to.  “What’s unreasonable is the scope of the law, because it does not differentiate between someone trying to peddle the latest line of lingerie and charities soliciting funds. The heavy penalties — up to $1 million for an individual and $10 million for a company — could conceivably fall on a West Shore parent advisory council looking for donations, a neighbour sending out garage-sale notices in Oak Bay or a person announcing a new home-business venture on Facebook.”

And then there’s this story, which has an ironic and humorous twist to it. The Guelph Mercury reported this week that the Conservative riding association for Guelph, Ontario sent a spam blast to the local Chamber of Commerce, making the email appear as if it came from a Chamber member. The Conservatives are the ruling Canadian party and preparing for what promises to be a tough election for them in fall, 2015. They’re also the party responsible for CASL.

Only weeks in, it feels like the Canadian war on spam has turned into a dog and pony show.

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