Law Times

PAGE 4 Spam law 'going to be pretty painful' Law firms warned to get ahead on compliance with new act NEWS BY JUDY VAN RHIJN For Law Times the world caused ripples when Parliament passed it in 2010, the effect of it actually coming into force will be like a splash of A announcing one of the most stringent anti-spam regimes in lthough legislation identifies two big problems with the incoming system. First is the increased difficulty in obtaining consent to send electronic mes- sages. The second issue is the tech- nological requirements involved. Among his clients are organi- zations that are scrutinizing their e-mail lists so they can get consent while it' new regime, it won't be possible s easier to do so. Under the comes out. Businesses will be at a significant disadvantage if they try to obtain consent aſterwards." Hayes believes there' awareness of what lies ahead. He estimates that only five per cent or less of big businesses are aware of the changes they need to make and suggests the vast majority of small- to medium-size businesses have no idea of the potential impact. "When s very low They should continue doing what they are doing with their privacy system. There are hoops to jump through, but they are easy hoops. cold water for many commercial entities, including law firms, that haven't come into compliance with it in advance. While Industry Canada has yet to send an unsolicited electronic message to obtain consent. "If you have a very large data- to release the final version of the regulations and further consulta- tions are likely before they take effect, Mark Hayes of Hayes eLaw LLP says businesses should be starting their preparations for the new anti-spam regime now. He base of contacts and the main way of communicating is by e-mail, you need to get consent before- hand; otherwise a lot of databases will be sterile, clients are sending out the neces- sary e-mails in the next few weeks. "The whole campaign needs to be completed before the policy " says Hayes. His the legislation went through in 2010, I would say that Canadian business was asleep at the switch. When I ex- plain it to people, they are shocked and surprised that it was passed by Parliament without rigorous pub- lic debate. It is such a fundamental change to how we communicate. They think, 'I don't send spam. I don't send millions of Viagra e-mails.' What business people do not realize is that it applies to just one e-mail. " putting proper policies in place, there are technological challenges. "The real problem about the act is the nature of the technology re- quired to comply, to deal with spammers — that is, a single entity that sends e-mails from one place to multiple recipi- ents. That' "The act was really designed " says Hayes. works. Look at law firms. There are lots of potential recipients but lots of potential senders, too. The act doesn't handle that well. It as- sumes a central entity that knows all the requests for unsubscribes." Hayes poses the following sce- s not the way all business nario: "If each lawyer in a firm has an Outlook account, and indi- vidual A says to one, 'Please don't send any more e-mails,' how do you communicate that to all the members of the law firm? It is a difficult technological and orga- nizational problem. It' that a vast number of businesses haven't thought about it and when s fair to say Besides getting consent and they do, they will have no idea technically how to do it." Steve Litwin, president of infor- mation technology consulting firm Litcom, is seeing some businesses move to introduce governance and structure into their e-mail systems. " As part of the strategy and security work we do, we make it part of the conversations we are having with clients," he says. Law firms have a head start on other businesses because of the mechanisms they already have in place under their Rules of Pro- fessional Conduct for passing on information that a client has provided. But they'll still have to rethink those policies, according to Dennis Dayman, chief privacy and security officer for Eloqua, a U.S. marketing automation firm that operates in Toronto. "The overarching privacy regulation requires an affirmative opt-in with notice of consent and choice, ONTARIO LAWYER'S PHONE BOOK 2012 YOUR MOST COMPLETE DIRECTORY OF ONTARIO LAWYERS, LAW FIRMS, JUDGES AND COURTS With more than 1,400 pages of essential legal references, Ontario Lawyer's Phone Book is your best connection to legal services in Ontario. Subscribers can depend on the credibility, accuracy and currency of this directory year after year. 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Includes lists of: • • • • Federal and provincial judges Federal courts, including a section for federal government departments, boards and commissions • Ontario courts and services, including a section for provincial government ministries, boards and commissions The Institute of Law Clerks of Ontario Small claims courts • Miscellaneous services for lawyers Visit carswell.com or call 1.800.387.5164 for a 30-day no-risk evaluation CANADIAN LAW LIST www.lawtimesnews.com OLPB - 1-2 page 4X.indd 1 1/20/12 10:42 AM Fax and telephone numbers, e-mail addresses, office locations and postal codes more specific aspect to it by crimi- nalizing it and targeting e-mail. It is bringing PIPEDA into the 21st century with cellphone media." He notes that any large global "The new legislation adds a " says Dayman. April 23, 2012 • lAw Times company should already have a customer relationship management process for the Personal Informa- tion Protection and Electronic Doc- uments Act on its database. "They should continue doing what they are doing with their privacy system. There are hoops to jump through, but they are easy hoops." Dayman has already wit- nessed the process of adapta- tion required by the American anti-spam legislation. "People said it would kill innovation and marketing. In reality, it helped. It made companies understand the things they should consider. Peo- ple no longer buy and spam and go crazy. There' thinking going into it, putting quality over quantity. "scary" part of the Canadian legis- lation is that it' "It's for SMS, instant messaging, Dayman believes the only s not just for e-mail. the law will target legitimate busi- nesses. "I think the CRTC will re- ally focus on those who are doing bad things — those who are being the porn spammers, improperly accessing systems, and improp- erly gaining data." Hayes agrees and notes Indus- and voice systems that have not been regulated before and may not have had a need for opt-in be- fore. " But overall, he's not worried try Canada has says the first year will largely involve an educational exercise on the effect of the stat- ute. "There' million-dollar fines, but I expect it to be more like the enforcement of PIPEDA than enforcement of the Competition Act. Ultimately, there will be significant changes to the way we do business, and this is just the big picture. When you get down to details, there'll be a lot of angels dancing on the head of a pin that I don't think the regulators have thought of yet. To be honest, I think it' pretty painful." s a lot of talk about the s going to be LT s some kid-gloves "

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