Law Times

Law Times • OcTOber 3, 2011 NEWS PAGE 3 BY MICHAEL McKIERNAN Law Times Spam regulations fall short, lawyers argue D critical, before it's ready to sign off on them. As things stand, Canton raft regulations meant to flesh out Canada's anti-spam law have failed to clarify uncertainties in the act, business lawyers are complaining. Canada was the last G8 na- tion to pass anti-spam legisla- tion when the Fighting Internet and Wireless Spam Act received Royal assent in December 2010. While many observ- ers welcomed the legislation as overdue, businesses worried the final result was an overly broad definition of spam that would force a complete rethink of the way they send commercial elec- tronic messages. The act bars senders from de- livering unsolicited commercial electronic messages, which in- clude text messages and e-mails, without receiving express or im- plied consent from the recipient. Many people held out hope that supplementary regulations from Industry Canada and the Canadian Radio-television and Telecommunications Commis- sion — the bodies tasked with enforcing the act — would nar- row the scope and provide for ex- emptions. But when they arrived this summer, the regulations fell short, says Michael Fekete, a partner at Osler Hoskin & Har- court LLP whose practice focus- es on information technology and e-commerce. "They don't attempt to ad- dress what are generally viewed as some of the unintended con- sequences of the new rules," says Fekete. "Businesses are scratch- ing their heads as to why the approach to consent they've adapted under [the Personal In- formation Protection and Elec- tronic Documents Act] is now considered invalid. The new consent rules effectively mean they don't have existing consents. There's very limited grandfather- ing, so clients are looking at the need to get fresh consent. That's one of the most significant chal- lenges organizations will have." David Canton, a technol- ogy lawyer with Harrison Pensa LLP in London, Ont., says it's difficult to give clients accurate information on compliance while the regulations remain up in the air. "I've got several clients looking for answers on this. We could advise based on the legislation but we weren't sure how much the regulations would change that. As it turns out, they didn't change much, but until we see the final regula- tions, it's a bit tough to get too granular. So it's a bit frustrating from that perspective." The legislation's enforcement date was initially set for some time around September of this year, but the federal election put that timeline back. The govern- ment then extended the deadline for comments on the regulations to Sept. 7, and the CRTC alone will have to go through submis- sions from 57 organizations and individuals, many of them says most businesses and chari- ties will fall afoul of the law and will have to scramble to obtain consent from as many people as they can. "Ironically, it may cre- ate more unwanted e-mail in the short term," he notes. "I would hazard a guess that the majority of businesses and charities do send spam from time to time according to the act but not the sort of things an average person would consider spam," Canton adds. "Because the penalties are so potentially high, it's not a situation where businesses can afford to say, 'Oh well, we don't need to worry.'" Under the act, individuals who breach the law are liable for penalties of up to $1 million. Corporations can face fines as high as $10 million. The limited exceptions in the act include commercial mes- sages between those who have a "personal or family relationship." 'Businesses are going to incur significant costs to bring them- selves into compliance,' says Michael Fekete. Nevertheless, the regulations state that personal relationships require a meeting within the last two years, something that appears to rule out those devel- oped over the Internet. The act also assumes implied consent in cases where there's an existing business relationship be- tween the sender and recipient. For all others, parties have to seek express consent. According to Canton, that means potentially inoffen- sive conduct could count as spam. For example, charities that contact former donors or volunteers outside of the two- year window would be violat- ing the act. "It's going to be, in my view, a bit of a compliance nightmare for the average busi- ness and charity," he says. In some cases, the regulations actually added extra require- ments to the ones businesses ex- pected after the act's passage, says Fekete. According to the regula- tions, messages must include information that identifies the sender or the person on whose behalf they were sent. It must contain a physical and mailing address and a telephone number for access to an agent or voice- messaging system. "Businesses are going to in- cur significant costs to bring themselves into compliance," Fekete says. But John Lawford, counsel at the Public Interest Advocacy Centre, says people are exag- gerating criticisms of the regula- tions. "Any time you ask anyone to do anything administrative, people with smaller businesses are going to say it's a huge impo- sition on them. It's a mountain out of a molehill." In Lawford's view, many busi- nesses are running into problems with implied consent because they've bought lists of e-mail ad- dresses for owners they can claim no existing business relationship with. "They don't want to face up to the fact that you can't e-mail people you don't know. Some of the marketers have woken up and realized that this thing may actually apply to them, so they're attacking the regulations. I don't have much sympathy for them. There is nothing here that is any different from the same kind of regulations you have under the do-not-call list." LT A CONCISE STARTING POINT FOR OCCUPIERS' LIABILITY LITIGATION CAUSE OF ACTION: OCCUPIERS' LIABILITY JANET E. SMITH, B.A., LL.B. Get a succinct overview of occupiers' liability law with this single new resource. Incorporating the latest case law and legislative developments, this primer explains how the principles of Occupiers' Liability Law apply in practice. 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