Does Canada’s Anti-Spam Law Really Make It Illegal To Promote a Child’s Lemonade Stand? No.

Yesterday’s post
on the fears associated with Canada’s anti-spam legislation focused on
emails between extended family members. This post will examine personal
relationships and the absurd claims that the current rules will stop
everything from emailing a teacher to promoting a lemonade stand. Barry
Sookman writes that the following would all likely be illegal under CASL:

  • E-mailing or sending a BBM message to your child’s teacher
    to ask him/her to tutor your child. A child emailing his/her
    teacher for the same purpose would also be illegal.
  • A student e-mailing a student a year ahead to buy a
    textbook or a student trying to sell used textbooks to
    students in another grade.
  • A mother sending out an e-mail to her daughter’s friend to
    ask her to baby sit.
  • A child soliciting a parent of a friend to shovel snow or
    mow a lawn for some extra cash.
  • A child sending out emails to invite neighbors to buy a
    glass of lemonade at his/her lemonade stand.
  • A person e-mailing neighbors on the street asking for a
    donation to fight a planned development or environmental
    threat.
  • A parent teachers group e-mailing a school principal
    encouraging him or her to purchase new equipment or
    learning materials or to do a renovation that would enhance
    their children’s learning or learning environment.
  • A child e-mailing her parents friends to buy Girl Guide
    cookies or to sponsor her in a school event.
  • Neighbors or acquaintances e-mailing each other to set up a
    carpool and to share the costs.
  • E-mails sent out to acquaintances, colleagues, and business
    contacts asking them for sponsorship in a charitable event
    such as to raise money for cancer research or many other
    worthy causes.
  • E-mailing an old friend who moved away and asking him/her
    to buy you hockey tickets so that both of you could see your
    home team when your visit.
  • E-mailing an old friend you haven’t spoken to in a while to
    help find a job or to ask for a referral or to tell the
    friend about your new job (and the products and services
    it sells).
  • E-mailing an old classmate to ask if he/she would be
    interested in investing in a new venture you are starting.

The reality is that some of these examples are not even covered by
the law without the need to delve into the regulatory exceptions.
For example, the law only covers commercial electronic messages,
which would likely exclude activities such as arranging a carpool.
Commercial electronic messages require the encouragement of
commercial activity, which the law defines as transactions, act or
conduct that is of a “commercial character”. As anyone who has
arranged a carpool for their kids can tell you, a reasonable
interpretation of non-commercial carpooling would find that it does
not meet that standard (even with “shared costs”).

The email from the mother to a daughter’s friend to ask her to
babysit is actually an inquiry as to whether the daughter is
available to babysit (the daughter’s friend is the service provider,
not the parent) and subject to the inquiry exception. The law
exempts commercial emails that are “sent to a person who is engaged
in a commercial activity and consists solely of an inquiry or
application related to that activity.” In the event that the email
is confirming a prior arrangement, there is likely consent for the
message or coverage under an exception for information directly
related to an employment relationship.

There are other examples that likely involve prior consent, such as
emailing a child’s teacher or school principal. Most of the
remaining examples would be exempted by the personal relationships
exception such as students emailing each other, old friends or
classmates emailing one another, or neighbours exchanging emails.

The repeated reference to neighbours emailing each other is
particularly odd. I know the email addresses of a few of my
neighbours, but only the ones with whom I have a personal
relationship. I am not aware of many neighbourhoods where everyone’s
email address is widely known such that emails go out promoting
lemonade stands or local advocacy. Rather, most of that information
is disseminated in physical form, specifically because the email
addresses of all your neighbours isn’t typically available. While
there may be exceptions, those are likely instances where the
community has actively requested the email addresses for use by the
community (often going door-to-door), so those on the list have
provided consent (or else it involves marketing companies linking
various databases to map contact information on a geographic basis,
which is precisely the kind of activity the law seeks to stop if
there is no consent).

Applied to Sookman’s example, the lemonade stand concern makes
little sense.  Emails sent to people in the neighbourhood will
invariably meet the personal relationship requirement (or have
consent) since there is no other obvious way to obtain those email
addresses. Without such a relationship or consent, the sender simply
doesn’t have the necessary email addresses to send throughout the
neighbourhood. So lemonade stands may be safe, but what of many
other small and medium sized businesses? More on why the law does
not represent a dire threat to those businesses tomorrow.

via Michael Geist Blog http://www.michaelgeist.ca/content/view/6772/125/

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