Anti-Spam Law Musings

Pending legislation always makes good fodder for lawyers to comment on in annual predictions articles. The pending anti-spam legislation has resulted in several such comments.

In my predictions article scheduled for publication next week, I comment that:

The Federal anti-spam legislation that was expected to be in force in 2011 is still waiting for regulations to be passed before coming into force. The draft regulations received a lot of criticism, and may be revised prior to the Act coming into force. The Act will be a compliance headache for many organizations, unless the regulations effectively narrow the broad definition of Spam. The Act is intended to provide tools to stop what we all understand to be spam. But the Act defines spam to include e-mails that many businesses or charities routinely send that the recipients probably would not consider to be spam.

Michael Geist predicts that in July:

Nearly one year after proposing anti-spam regulations, the government unveils modified regulations and seeks further public comment before the law takes effect. The new regulations establish a series of new exceptions to the law consistent with the demands of several marketing groups.

Barry Sookman has written a detailed analysis entitled Will it be illegal to recommend a dentist under Canada’s new anti-spam law (CASL)?  in which he suggests that the legislation may indeed be that overreaching. It is worth a read to get a flavour for how complex this can get, and what the unintended consequences may be.

This legislation and its pending regulations merit a close watch this year. While its intentions are good, I believe it has the potential to waste far more time, money and effort for businesses and charities attempting to comply, than it will save by the amount of real spam it might reduce. And I’m not sure whether appropriate regulations can temper it sufficiently.

Another wrinkle is that the Supreme Court of Canada’s December decision that said the proposed Canadian Securities Act was not within the legislative authority of Parliament has some wondering if the same fate might be in store for parts of the anti-spam legislation.

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Comments

  1. Good point about the constititutional issue. Even the the current regime wouldn’t be some dumb as to attempt to characterize the anti-spam legislation as criminal or quasi-criminal, right? I’d like to have written “couldn’t be” but they’ve already proved it’s not safe, to underestimate their disregard for the nomological.

    The other side is that what isn’t there that can’t be categorized as substantially property & civil rights? Is it too Machiavellian to suspect that the SCC was sending a not so subtle hint to both federal and provincial levels?

  2. David Collier-Brown

    Gee, did the government of the day lay off all their legislative draftsmen/women? This isn’t the first act I’ve seen that looked like it needed a few days with a grumpy editor and a red pencil…

    –dave