The day after Canada’s tough new anti-spam law came into force, I got an email with this as the subject line: “Be pleasings her ALL night long.”
All night? That’s a long time to be pleasings someone. What do they want me to do, line the kitchen cupboards with new shelf paper? Fix the stairs on the deck? Fold the towels nicely? That would be pleasings her very much.
Not so pleasinged are all those local businesses scrambling to comply with the anti-spam law that took effect July 1.
The legislation says commercial messages may no longer be sent to you electronically — by email, texts, or direct messages on social media, say — without your consent.
That consent was supposed to have been given by June 30, which is why you might have been inundated last week by messages from companies imploring you to stay signed up for their mailing lists.
Some businesses began planning for the change months ago, while others tripped over the deadline. Victoria’s Jenifer Chilcott, a lawyer with Farris, Vaughan, Wills and Murphy, spent Wednesday dealing with frantic calls from clients trying to play catch-up. Likewise, Bruce Carter, the CEO of the Greater Victoria Chamber of Commerce, found his post-long-weekend inbox crammed: “I had 382 messages and I’d swear half of them were from people asking me to opt in.”
That opt in/opt out business is one of the ways Canada’s anti-spam law differs from that of the United States. In the U.S., the rules merely say recipients must be given a way to opt out of mailing lists. But Canada’s law, described as the toughest in the world, says emails can’t be sent to anyone who doesn’t expressly opt in. Communication is allowed where there is “implied consent” — that is, where there’s an existing relationship, such as a sale — but even then consent comes with time limits and the customer must be given an easy way to unsubscribe whenever he or she wants.
For businesses, the Canadian Anti-Spam Legislation is a minefield with big bombs. Penalties include fines of up to $10 million for corporations and $1 million for individuals. Corporate officers and directors face personal liability, and businesses are liable for the actions of their employees. Criminal charges are possible. Eventually, lawsuits will be, too.
“It’s a whole new world out there. Don’t assume you can use email the way you have in the past,” Chilcott tells her clients.
“Familiarize yourself with the legislation and train your employees.”
Authorities are expected, at least at the start, to be gentle with their application of the new rules, favouring education over enforcement. Besides, even if it wanted to be heavy-handed, Ottawa doesn’t have the capacity to crack down on every infraction. It’s not as though the Canadian Radio-television and Telecommunications Commission has a crack emergency response team waiting to be choppered in every time Bubba’s Sporting Goods sends out a 30 per cent off coupon.
Still, businesses are nervous. Carter’s Chamber of Commerce held an info session on the new law last week. It sold out, so they scheduled another for this week. It sold out, too. Carter hopes leniency will be shown to those businesses that show a reasonable attempt to comply with the new rules.
But even compliance has consequences. One of Chilcott’s clients had just 200 of the 10,000 customers on its mailing list consent to continued communication. That hurts.
So does the confusion resulting from unanticipated questions. What happens if a U.S. company with Canadian subsidiaries has a mixed mailing list? It might find itself in compliance with American law, but not Canadian. The fear of falling afoul of Canadian regulations could lead some companies to cut off Canadian customers and deny them the deals offered to others.
“There’s going to be so much unintended fallout,” Chilcott says. Even the definition of “commercial electronic message” is uncertain.
Meanwhile, the worst of the spam — the unsolicited pitches for cheap toner cartridges, tractor parts and pharmaceuticals — continues to flow in to your inbox from offshore, far beyond the reach of the CRTC or, apparently, the Grammar Police. That doesn’t pleasings us at all.
