Law Times

PAGE 4 NEWS OctOber 29, 2012 • Law times Lawyers critical of spam guidance CRTC information raises ire of business community BY JULIUS MELNITZER For Law Times T Unleash the Power of Looseleaf These helpful corporate and commercial titles are now part of the Carswell eReference® Library From advertising and marketing law, to limited partnerships, these resources offer crucial information. Access content in print or online with the Carswell eReference® Library. Must-Have Corporate and Commercial Publications CANADIAN ADVERTISING AND MARKETING LAW DAVID M.W. YOUNG AND BRIAN R. FRASER Carswell THE LAW OF DOMAIN NAMES & TRADE-MARKS ON THE INTERNET SHELDON BURSHTEIN Carswell OUTSOURCING TRANSACTIONS: A PRACTICAL GUIDE LIMITED PARTNERSHIPS LYLE R. HEPBURN, B. COMM., DIP. BUS. ADMIN., LL.B., AND WILLIAM J. STRAIN, C.A. Carswell LAW OF CONFIDENTIAL BUSINESS INFORMATION THE HONOURABLE JULIE A. THORBURN AND KEITH G. FAIRBAIRN Canada Law Book BRITISH COLUMBIA CORPORATION MANUAL, 2ND EDITION BORDEN LADNER GERVAIS LLP AND ROBERT G. OWEN Carswell GOVERNMENT INFORMATION: THE RIGHT TO INFORMATION AND THE PROTECTION OF PRIVACY IN CANADA, SECOND EDITION KRIS KLEIN AND DENIS KRATCHANOV Carswell CONSTRUCTION, BUILDERS' AND MECHANICS' LIENS IN CANADA, 7TH EDITION DAVID I. BRISTOW, Q.C., DUNCAN W. GLAHOLT, R. BRUCE REYNOLDS, AND HOWARD M. WISE (QUÉBEC CHAPTER BY DAVID H. KAUFFMAN) Carswell For more information, call 1-800-387-5164 or visit www.carswell.com/ereference C. IAN KYER, B.A., M.A., Ph.D., LL.B, AND JOHN BEARDWOOD, B.A., M.A., LL.B Canada Law Book sponse to demands for clarification from the business community appear to have created more concerns than they allay. "The guidelines have put business in he anti-spam guidelines issued by the Canadian Radio-television and Telecommunications Com- mission earlier this month in re- a difficult position by creating significant operational concerns increasing the burden of complying with the legislation," says David Elder, a privacy lawyer who works as counsel at Stikeman Elliott LLP' Act was enacted in December 2010. The government has yet though that's expected early in 2013. But The Electronic Commerce Protection to proclaim it, al- s Ottawa office. recently, the CRTC released the electronic commerce protection regulations related to the information required in commercial electronic messages. "The regulations were disappointing be- cause they were not clear on specific com- pliance issues," says Patrick Flaherty, a part- ner who practises privacy law at Torys LLP. "The guidelines help in that way but they also reflect a very narrow interpretation of the legislation." So while the guidelines, which aren't and substantially 'The regulations were disappointing because they were not clear on specific compliance issues,' says Patrick Flaherty. and get specific consent to the sending of these electronic communications." The irony, says Elder, is that the standard of consent in the guidelines exceeds what's use, and disclosure of personal information is generally based on the reasonable expec- tation of the consumer, binding, assist in the sense that they provide details on what the CRTC views as accept- able, lawyers say their content is problem- atic in several ways. To begin with, the guidelines rule out de- fault settings as acceptable compliance with the law' means is that senders can obtain express consent by using tick boxes so long as that consent is not an opt-out consent in the sense that consent is assumed by way of be- ing the pre-ticked option," says Flaherty. Complicating the issue is the stipulation s consent requirements. "What this that companies can't bundle consent provi- sions with general terms or conditions of acceptance. "The suggestion is that senders will have ment mainly affects businesses that are still working in the paper world. "Entities like banks, insurance com- many cases, privacy law acknowledges im- plied consent, which the guidelines do not, and that indicates a disproportionate level of concern about unsolicited e-mail. can obtain express consent in writing. The onus of proof, however, falls on the sender. An independent third party or an audio recording can verify it. According to Flaherty, this provision The guidelines do indicate that parties " presents significant challenges. " appear to assume that the recording will be made over the telephone but make no provision for the many situations where ex- press consent can be obtained at the point- of-sale, As far as recordings go, the guidelines to add a section that deals only with con- sent," says Flaherty. Ironically, the separate consent require- panies, and investment brokerages who have relationships with customers that involve contracts that have not been signed online may understandably and appropriately want to send unsolicited e-mails to these established clients," says Flaherty. "The guidelines suggest, how- ever, that they will now have to go out Marketplace OFFICE SPACE AVAILABLE Toronto - Prestigious professional office in the heart of Yorkville, Canada's premiere shopping and entertainment district! High- end penthouse unit with spectacular city views, private elevator, boardroom with city views, kitchen 24/7 ac- cess, business support services, high qual- ity furniture, cleaning service. Well- suited for accountants, lawyers, entrepreneurs or other professionals. Price includes utilities, extra fee for phone, internet, fax and copier. Please contact admin@tagstmichel.com for more information. receptionist area, To advertise call 416-649-8875 Carswell-34560_LT_Oct22_12.indd 1 12-10-22 9:45 AMwww.lawtimesnews.com ticularly instructive about what verifica- tion by an independent third party actually means in practice. "Otherwise, the CRTC hasn't been par- " he says. that they've received express consent, a re- quirement that neither the legislation nor the regulations appear to have indicated and one that will arguably only add an un- necessary unsolicited electronic communi- cation to consumers' inboxes. Additionally, the guidelines require Senders must also confirm in writing " senders to obtain consent separately for each regulated action. They must also indi- cate that users can withdraw their consent at any time and that in the case of multiple senders, they all must identify themselves. As Flaherty sees it, the requirement re- " he says. "And in generally expected in privacy law. "The consent required for collection, lated to multiple senders is a particularly onerous one. "What this means is that organizations that may be composed of a host of differ- ent corporate entities will have to obtain separate consent for each of those entities," he says. "From my perspective, I can't see how having a list of 75 entities on a consent form will help consumers." Finally, the guidelines indicate that the unsubscribe mechanism will be necessary for all electronic messages of a commercial nature, even those that are transactional or intended to serve existing clients' needs. If the courts uphold this interpretation, busi- nesses may have to deal with consumers who have unwittingly unsubscribed from these types of communications by phone, mail or other means. LT

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