Canada’s anti-spam law (“CASL“) is continuing down a painfully slow path toward implementation.
To recap:
- The CASL legislation itself was passed in 2010
- The report of the anti-spam task force was released in May 2005, having been established a year earlier.
- The CRTC and Industry Canada have held consultations on the regulations associated with the law. Industry Canada has just released revised regulations for public comment. The first of the CRTC’s Information Bulletins were released last fall. The CRTC’s regulations were released last March.
A number of commentaries have come out in the past week regarding the revised Industry Canada regulations. Michael Geist writes “Canadian Government Unveils Big Loopholes in Anti-Spam Regulations“. Michael Fekete of Osler writes “New Draft Regulations Soften Impact of CASL, but Concerns about Jobs and Compliance Costs Remain” while David Elder at Stikeman’s writes “Many business concerns remain following revisions to anti-spam regulations“. I encourage you to read each of these commentaries.
Regular readers will know that I share the concerns of the business lawyers; I believe the law will have the effect of damaging electronic commerce in Canada.
Different perspectives, based in large part on how far the legislation strayed from a focus on spam. Take a look at what the anti-spam task force wrote in 2005:
At the macro level, spam is a direct threat to the viability of the Internet as an effective means of communication. Because of this, spam is also a direct threat to increasing economic prosperity, to more efficient public services and to the emergence of an e-economy that includes all Canadians.
At the micro level, spam annoys and offends Internet users. It also provides a vehicle for activities that are clearly illegal — or should be. These include:
- malicious actions that cause harm to computers, networks or data, or use personal property for unauthorized purposes (e.g. viruses, worms, Trojan Horses, denial of service attacks, zombie networks);
- deceptive and fraudulent business practices, including online versions of traditional mail-based frauds (e.g. the “Nigerian bank account” or “419” scam, and “spoofed” websites masquerading as legitimate businesses);
- phishing emails designed for identity theft or to steal money; and
- invasions of privacy (e.g. email-address harvesting, spyware).
That describes what most of us consider to be spam – and we would agree should be the target of legislation. But CASL reaches far beyond. If a new restaurant or dry cleaner opens up in your neighbourhood, CASL makes it illegal for them to send out a email blast to tell you about them. They can print flyers and drop unsolicited paper off at your door but don’t try saying the same thing electronically.
In my view, we strayed too far from trying to target fraud. In doing so, Canada is going to cause harm to the adoption of digital technologies and electronic commerce.
CASL is an example of what can go wrong when we try to operate without an overall Digital Economy Strategy.