Bill C-28 and Social Media

David Canton and Simon Fodden have both described ways in which Bill C-28 (FISA – the “Anti-Spam Act”) could affect businesses in unanticipated ways.

Stéphane Caïdi of Fasken Martineau introduces in The Gazzette yet another – the use of social media,

Businesses should, therefore, take warning that this law will apply not only to electronic mail, but to any type of communication technology or means, including social networking media such as Facebook, Twitter, LinkedIn and promotional or advertising messages that are sent to users on their cellphones.

Although David touched on social media briefly here, Caïdi’s statement raises several questions for me given that most corporate use of social media requires a user to opt-in before contacting them directly, which presumably would not violate the consent requirement in s. 6 of the Act,

6. (1) It is prohibited to send or cause or permit to be sent to an electronic address a commercial electronic message unless

(a) the person to whom the message is sent has consented to receiving it, whether the consent is express or implied;

Following a company on Twitter or LinkedIn, and accepting a friend request or liking their corporate page on Facebook, would appear to provide implied consent for that company to contact you. Direct messages are not even possible on Twitter unless the other person follows you back.

Social networking platforms will also typically comply with the identification requirements in s. 6(2), as long as they are using their real corporate names.

What is less clear is whether the “unfollowing” or “blocking” mechanisms on these platforms would meet the unsubscribe requirements under s. 11, especially since an independent means of unsubscribing is required by the Act,

11. (1) The unsubscribe mechanism referred to in paragraph 6(2)(c) must…

(b) specify an electronic address, or link to a page on the World Wide Web that can be accessed through a web browser, to which the indication may be sent.

It’s also unclear whether requests to connect with potential consumers over a social network will fall within the definition of a commercial electronic message under s. 6. As Simon points out, requests to send an electronic message is itself deemed an electronic message under s. 1(3).

Is a company adding someone on Twitter creating a presumption that the company wants to communicate with them? Probably, seeing how communication is the main purpose of the social networking platform.

In my communications and public relations consulting I almost always encourage private companies and public agencies to expand their social media presence to develop stronger relationships with the public. But no matter what they do, these relationships are not likely to be defined in the regulations under s. 64(1) as the types of personal relationship exception identified in s. 6(5)(a).

The social media issue adds yet another twist to what is already appearing to be a complicated compliance scheme, at a cost under s. 20(4) of up to $10 million.