New anti-spam rules confusing
Retailers, charities uncertain what will be allowed under new law
Days before the federal government’s sweeping new anti-spam legislation comes into force, confusion reigns among organizations, charities and businesses that will be affected by the new rules.
New anti-spam laws that begin to take effect July 1 will “generally prohibit” the sending of commercial electronic messages without the recipient’s consent, including messages on email and social networks such as Twitter, and text messages sent to a cellphone, according to the federal government.
The legislation (parts of which don’t actually take effect until January 2015) also bans the installation of computer programs without express consent, such as malware, spyware and viruses hidden in programs, spam messages or downloaded through infected links.
As the July 1 date draws near, businesses and organizations of all kinds have — ironically — been frantically spamming Canadians with emails asking for their permission to continue sending messages.
But a number of groups, charities and businesses are still perplexed as to what applies to them and how to comply with the new law.
“There is a ton of confusion out there,” said Kim Cunnington-Taylor, a lawyer with Ottawa firm Nelligan O’Brien Payne LLP, who has carefully studied the legislation and is advising clients on it.
“Retail businesses, marketing businesses, those are the ones — large and small — that are going to really feel this,” she added.
Under the new rules, the maximum monetary penalty for failing to comply is $1 million per violation for individuals, and $10 million for companies, although a number of factors will be considered when determining whether to issue a fine.
However, Cunnington-Taylor doubts the Canadian Radio-television and Telecommunications Commission (CRTC), which is largely responsible for enforcement, will go after businesses or charities that make honest mistakes, and will instead help them comply with the new rules.
CRTC chairman Jean-Pierre Blais, in a speech Thursday in Toronto, confirmed the commission will focus on the most severe types of violations. “Punishment is not our goal,” he said. “We are not going to go after every indie rock band that’s trying to sell a new release to its fans. We have much bigger fish to fry.”
The government says the new laws don’t apply to charitable groups such as churches, trying to send a weekly newsletter, and that registered Canadian charities will be exempted from the rules for fundraising purposes.
Cunnington-Taylor, says, however, that confusion remains over how charities will be treated because the content of the message they send could determine whether they’re sending spam or not.
Also, non-profit organizations, such as community groups, that are not registered charities but still try to fundraise, may have to comply with the new rules, she said.
Imagine Canada, a major umbrella organization for charities across the country, has issued multiple alerts to charitable groups trying to explain how the legislation will affect them — but is still seeking clarity from the government.
In a bulletin released this week, Imagine Canada said the CRTC contacted it to explain, “there are inconsistencies” between the CRTC’s interpretation of the exemption for charities and that of Industry Canada.
“The full extent of the discrepancies between the interpretation provided by Industry Canada, the authors of the legislation and regulations, and the CRTC, may only become clear after the legislation takes effect,” Imagine Canada said in its bulletin to charities.