Why Canada’s Anti-Spam Law won’t harm small businesses

Opt-in was the right choice for everyone

Canada’s Anti-Spam Legislation took effect on July 1. And with that, the fear and loathing reached fever pitch.

NoSpam

While there is some genuine confusion among businesses about some of the new regulations coming into force, it’s also tough to feel too much sympathy for those who are complaining like it’s the end of the world. CASL was passed in 2010 and the regulations were finalized in December, 2013, meaning that businesses have known new anti-spam rules were coming for four years and have had six months to get ready for them.

Furthermore, CASL is generally in line with anti-spam laws found in Europe. In 2003, the European Union adopted a set of laws that revolve around opt-in, where businesses must get the express consent of individuals in order to send them commercial electronic messages, which is also how CASL functions.

Critics of the Canadian legislation have focused on the penalties – up to $1 million per offense for individuals and $10 million for companies – and there’s little doubt they’re on the high side. Stiffer penalties may be a trend in the making, however. The United Kingdom’s spam enforcement authority, for example, was originally empowered to issue fines of up to £5,000, but that was raised dramatically in 2011 to £500,000, which is just about $1 million (Canadian).

Much of the criticism is rooted in the fact that CASL is fundamentally different from the U.S. system, as well as that used in Australia and New Zealand, which revolves around opt-out. Brought about by President George W. Bush in 2003, the “Controlling the Assault of Non-Solicited Pornography And Marketing Act” gives a green light to businesses to send spam. If consumers don’t want to receive it, they have to expressly opt out.

While the legislation had the clever acronym of CAN-SPAM, as in putting spam into a can, critics have suggested “YOU-CAN-SPAM” is a more appropriate name since it effectively legalizes unwanted email.

Two points can be taken away from all this. First, Canada is well behind peer nations in adopting anti-spam mechanisms – more than a decade, given that many jurisdictions adopted legislation in 2003 or 2004.

The other point actually works in the favour of Canada and Canadians because, when a country is late to a particular party, it can learn from the mistakes of others and adopt better regulations. The Canadian government is thus smart for moving to a stricter European-style opt-in system rather than what is acknowledged to be a wholly ineffective U.S.-style opt-out system.

Even still, that hasn’t stopped the kvetching about CASL. If it hasn’t been complaints about the “draconian” nature of opt-in to the high penalties for violating it, it’s been overblown rhetoric about how the legislation will prove to be the end of everything:

And then there’s the bizarre comparisons of spam to physical mail:

The answer to the question in the first tweet, if anyone has any doubt, is “none.” As both Industry Canada and the Canadian Radio-television and Telecommunications Commission have stated, harsh enforcement is highly unlikely, especially against legitimate small businesses. Warnings are more probable:

As for the comparisons to physical mail, there are number of reasons why that particular analogy is completely off base:

Cost

In case this one even needs explaining, businesses face significantly higher costs to send out flyers, catalogs, letters or any other sort of physical mail, whereas electronic messages cost virtually nothing. This is kind of the whole reason why email took off and why there is spam in the first place.

Blockage

Many businesses are dissuaded by the cost of sending out physical mail, but some aren’t. Fortunately, Canadians have the right to eliminate those mailouts entirely too – all they have to do is attach a note to their mailbox stating that they do not wish to receive unaddressed mail. Spam filters from some of the bigger email providers do a good job at keeping out most of the electronic junk, but prior to CASL there was no virtual equivalent to that mailbox note.

Cuts

If the costs and the ability of Canadians to block unaddressed physical mail aren’t enough, businesses are increasingly having to deal with the fact that Canada Post is scaling back home delivery. By 2019, most people will be picking up their mail at community boxes. And with people having to actually leave the house and possibly travel a few minutes to get it, it’s a safe bet many people will only venture down to those mailboxes once in a while. Lower effectiveness is yet another discentive for physical spam.

So yes, sending out unwanted physical mail without consent is legal while commercial electronic messages aren’t, but why does that matter? Of all the complaints circulating out there, this is surely the one with the least merit.

Ultimately, there’s something very Canadian about complaining about new laws, especially digital ones, and that’s often a good thing. Debate and questioning is, after all, an important part of a democratic society.

But there’s also something very Canadian about doing things slightly different than the Americans. In this case – where the government has chosen to outlaw spam rather than legalize it – that’s definitely a good thing.

This story originally appeared in Canadian Business.

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