Last Friday, Industry Canada released highly anticipated (well at least in Internet, advertising and competition law circles) new draft regulations relating to the impending new Canadian anti-spam legislation (CASL).
The new draft regulations, among other things, expand on some key terms in the legislation, clarify some exceptions existing in the legislation and add several new exceptions. These include sending commercial electronic messages to enforce a legal right, an exception for some types of referrals and for electronic communications sent within a company (or between companies in an existing business relationship).
Some commentators have come out criticizing the new draft Industry Canada regulations for, among other things, “watering down” the impending legislation and dulling its effectiveness.
While the orthodox view for lawyers is to be cautious in taking positions, given that one may be asked to act on either side of a matter or issue, I’m going to go out on a bit of a limb here and set out a few reasons why, in my view, the best result for CASL would be to can it – although, alas, that is a very remote possibility at this point given that legislators continue, albeit at a glacial pace, to advance the legislation:
1. The 70+ page legislation is cumbersome, awkward, business unfriendly and contains many uncertainties regarding how the new law should be practically applied.
2. CASL will further increase compliance costs and efforts for legitimate small and medium-size businesses making genuine efforts to market their businesses and compete.
3. Like telemarketing, the new legislation is unlikely to deter the relative deluge of offshore fraudulent marketers sending inbound spam into Canada.
4. Three enforcement agencies to enforce and administer the new law will, in addition to the awkward and highly unworkable legislation, add further confusion and compliance obstacles.
5. I myself subscribe to many, many online services, blogs and other news services, including social media platforms. Deleting unwanted electronic mail is, well, easy and in my view far less of an evil than, among other things, imposing an additional compliance burden across the entire electronic marketing landscape in Canada.
6. I am highly skeptical that the new law, which at the moment, without the law even being in force yet, consists of an 70+ page piece of legislation, CRTC regulations, draft Industry Canada regulations, two initial sets of CRTC guidelines and a federal Government website, will be effectively enforced. In this regard, despite do not call rules being introduced in Canada a few years back, this hasn’t seemed to have had any meaningful deterrent effect on offshore deceptive telemarketing, despite, for example, CRTC cross-border enforcement efforts with other national enforcement agencies.
7. The new rules, once in force, may well have a chilling effect on many forms of legitimate marketing based on overbroad and unclear rules. In my view, steps should be taken to encourage more online and new media innovation, including new media/online marketing, not pass difficult legislation that may slow the pace of innovation.
8. Enforcement costs. Back to my point about the cost/benefit analysis, do we really need three federal agencies (the CRTC, Competition Bureau and federal Privacy Commissioner) budgeting more money and enforcement resources for, well, unwanted e-mails?
In sum, despite some expectant lawyers anticipating new files and fees, the best course would be to abandon this misguided attempt to regulate electronic marketing. Will that happen? Alas it seems highly doubtful at this stage, as CASL continues to march toward coming into force. Will industry succeed in further watering down CASL, with what may be the final round of consultations? I sincerely hope so.
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