Setting the record straight
Thursday, Jul 24, 2014 10:43 am
“Get the facts on Canada’s New Anti-Spam Law,” Comment, July 10
In his July 10 article, the MP for the federal Wild Rose riding, Blake Richards, defends Canada’s new anti-spam law—“CASL,” for short. Mr. Richards says that CASL will protect Canadians from criminal activities such as online fraud by prohibiting unsolicited “commercial electronic messages.” Mr. Richards also mentions that CASL received the support of all parties in Parliament and that businesses will have ample time to bring their practices into compliance with the new law.
CASL is simple. Effectively, it makes all non-personal electronic messages (including emails and text messages) illegal, unless you can find an exemption somewhere in the law or its regulations. A single email sent to a single recipient can be illegal since CASL does not say that spam must have multiple recipients, multiple iterations, or the like.
Even though Mr. Richards’s facts are correct, he offers us no good reason to support CASL. In fact, there are many reasons why CASL is a huge mistake. Here’s why:
First, we don’t need it. Fraud is already illegal. Criminals who use electronic messages to commit fraud have already demonstrated that they do not respect the law. It’s naïve to believe that enacting a new law making fraud “more-illegal” will have any effect whatsoever. Also, how does the government plan to enforce this law against electronic messages coming from outside of Canada? In most circumstances, enforcement will simply be impossible.
Second, we don’t want it. The Canadian Chamber of Commerce conducted a mini-survey of over 160 of its members. The results showed that 90 per cent of organizations thought that CASL should be scrapped, amended, or at least subject to Parliamentary review. Eighty per cent answered that it would be ineffective. 64 per cent said that CASL would make it more difficult to conduct business. And 56 per cent thought it would be an impediment to business development, job growth, and the future prosperity of Canadians.
Third, it is too great an interference with freedom of expression. CASL is written so broadly that it effectively makes all non-personal emails subject to review by the CTRC — one of the three government bodies responsible for its enforcement. Aside from making government bureaucracy even larger and more powerful than ever, CASL makes a breathtakingly enormous range of otherwise innocuous electronic messages illegal. For example, if your Grade 3 child emails his classmates offering to sell his baseball glove using email addresses supplied by his elementary school, your child has broken the law and is liable for a $1 million penalty. And you could face the same penalty if you text your grandparents asking for help paying a medical or tuition expense. These examples show how ridiculous CASL is.
Fourth, it’s unfair. CASL does not apply to business ventures only — it also applies to charities. In many circumstances, CASL makes it illegal for charities to contact people on their own email distribution lists. This is devastating since these lists are often the result of years of labour and form a large part of the value of an organization. And depending on the work that the charity does — making it illegal to contact people could pose a public safety risk. Does the federal government really want us to believe that this was somehow necessary to protect Canadians from fraud?
Fifth, CASL is completely backwards because it makes all electronic messages illegal until proven otherwise. But sensible laws target bad behaviour, not render all behaviours bad until proven good. We suddenly need the government’s permission to send emails.
Sixth, some of the most obnoxious forms of unsolicited electronic messages are not covered by CASL. Personally, I would rather receive 10 spam emails daily than a single unsolicited marketing phone call during suppertime. Yet such forms of electronic messages are subject to different laws and not to CASL.
Derek James From is a Calgary-based lawyer practicing constitutional law with the Canadian Constitution Foundation.
Derek From, Chestermere