Industry Canada addresses concerns of business in new CASL regs

Those following the evolution of the Canadian Anti-Spam Legislation were, for the most part, pleased with the latest round of regulations released late last week as Industry Canada further clarified its requirements around commercial electronic communication.

“I think it will give businesses comfort. There was a lot of unease about unintentionally getting caught by this legislation, so I think some of these changes for the intent of business-to-business communication is helpful and will put people’s minds at ease. However it seems like a lot of waiting for not a lot of change,” says Bernice Karn, a partner at Cassels Brock & Blackwell LLP in Toronto.

CASL was tabled as Bill C-28 on May 25, 2010, and granted Royal assent Dec. 15, 2010. The Electronic Commerce Protection Regulations released Jan. 4 are supposed to aid in further defining the terms and concepts necessary to bring the legislation into force.

The new regs address major areas of concern including family and personal relationships, exemptions for certain types of messages, unknown third parties, third-party referrals, membership in a club or association, and installation of certain computer programs by telecommunications service providers.

While some critics say the regs have a number of new exceptions that will provide loopholes to spammers, those on the front lines of business say the exemptions are welcome.

“I wouldn’t call it loopholes — they have created exemptions that were absolutely critical to some legitimate businesses,” says Geoffrey Creighton, senior vice president, general counsel and secretary with IGM Financial Inc. “In some cases they realized the unintended consequences of what some of the provisions said and they’ve mitigated those. It will be important to see what they ultimately put out for compliance guidelines.”

For organizations like Mackenzie Financial, which is part of IGM, their products are marketed through thousands of third-party advisers at brokerage and planning firms. Creighton says it’s the relationship between those people and their potential clients and what they can send or not send — particularly third-party referrals — that were at issue for the company.

The important change is the third-party referrals (s. 4 of the regulations) and the notion of referral marketing, particularly by small businesses.

“This is absolutely critical and on the face of the legislation alone, there was a serious concern people couldn’t follow up on referrals given to them by friends and family and that has been mitigated,” says Creighton. “That’s an important one that was responsive to concerns raised by a whole lot of industries including the financial advice industry and small business professional of any sort.”

In some respects though, Karn says, the regulations attempt to clarify that which probably didn’t need clarification.

“It was a lot of waiting for not very much and with some of the changes I don’t even know why they bothered,” says Karn. “Some of the changes they’ve added include exceptions for things that are not considered to be commercial electronic messages. For example, a message sent to ‘satisfy a legal or juridical obligation.’ If you look at a definition of a commercial electronic message, I find it hard to believe that would even be a commercial electronic message in the first place.”

The category of “personal relationship changes” may have also become more confused.

“They’ve made it so subjective I think it’s just going to open the door for a lot of spammers to use that personal relationship exception to try to get spam through,” says Karn. “I have an overall issue with this act in that it’s so broad in prohibiting everything and then having limited sets of carve outs. It’s dangerous from that perspective rather than just prohibiting certain specific acts and leaving it at that.”

The one area Creighton says is still unaddressed is the notion of social networks such as LinkedIn and Facebook.

“In my mind it remains a question how small business people can conduct themselves on these social networking sites if they’re there purely for the purpose of promotion of their business. What are prohibited and what are acceptable communications?”

Further comments on the regulations can be submitted until Feb. 4. The legislation itself won’t fully come into effect until 2014 and businesses can rely on their existing consents for three years after the legislation takes effect.

“It gives people time to make sure their marketing and communications lists are subject to the proper types of consents,” says Karn.

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