Canada's New Spam Act: What Does It Mean For Small Businesses?

The Canadian government passed the Fighting Internet and Wireless Spam Act late last year, just before the holiday break. The law was long overdue as Canada was one of the last large First World countries to pass an anti-spam act. However, now that it is in place, many small business owners are unsure about their obligations under the Act - what are the legal questions surrounding the sending of an electronic newsletter, for example? Does that qualify as spam? How about a mass coupon emailing?

Looking at the Act, the new prohibited actions are fairly straightforward. Section 7 outlines the actual act of spamming: sending or causing/permitting the sending of a commercial e-message unless it meets all of these qualifications:

• the person has consented to receiving it
• the message identifies the sender and their contact information, and
• an unsubscribe mechanism is included with the message.

"Consent" goes beyond express consent and encompasses implied consent as well. According to section 11 of the Act, businesses can assume implied consent when the receiver has:

• bought, leased or traded with the sender within the last two years,
• provided a business or investment opportunity to the sender within the last two years,
• entered into a contract with the sender within the last two years, or
• received an inquiry from the sender within the last six months.

Furthermore, consent can arise from non-business relationships, such as when the message recipient has made a donation, performed volunteer work or been a member of the sending organization within the last two years.

The prohibition doesn't apply when the mail is sent between friends and family, or when someone sends a commercial email inquiring about another person's commercial services (asking for a quote on a service, for example). It also doesn't apply to someone providing a quote or estimate, warranty information, or other sorts of communication that would facilitate an ongoing business transaction or inquiry.

(It also doesn't apply to electronic messages that are two-way voice conversations, voicemail messages or faxes, so telemarketers and junk-faxers can rejoice that their annoying business models remain legal for now.)

Sections 8 and 9 are largely not applicable to small business owners as they respectively concern themselves with man-in-the-middle-style hacking operations (the redirecting of email mid-transfer) and the surreptitious installation of malware or spyware in the course of commercial activity.

However, businesses with websites that require users to accept cookies should be aware that cookies are programs that install themselves on another person's hard disk and therefore, technically, are prohibited under the Act if the user does not consent to their installation. In practice this will not often be relevant since most people either set their web browsers to auto-accept cookies or set them to give prompts when a cookie is offered, but it is worth noting.

Finally, section 10 prohibits aiding, inducing, procuring or causing to be procured any of the activities prohibited in sections 7 through 9.

Ultimately, small business owners that are concerned about their vulnerability under the Act should carefully examine their newsletter practices and consider obtaining legal advice as to their obligations and responsibilities.

- Christopher Bird, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

TORONTO EMPLOYMENT LAW • TORONTO CIVIL LITIGATION & ESTATE LITIGATION • TORONTO FAMILY LAW & DIVORCE

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Spammiest. Professional Announcement. Ever.

I have no idea whether the law firm involved had anything to do with the creation of this "press release" (and I suspect it did not - I'd like to believe that nobody who writes so poorly could ever have made it through three years of law school), but someone, somewhere sure does like using the keyword phrases "Ottawa Family Law lawyers" and "Ottawa Wills and Estates lawyers."

The phrases makes numerous redundant appearances in a professional announcement, published online, that announces the addition of two "Ottawa Family Law lawyers" and "Ottawa Wills and Estates Lawyers" to a "premier Ottawa law firm," thereby purportedly adding to the "depth of the firm."

This exciting career news of these two "Ottawa Family Law lawyers" and "Ottawa Wills and Estates lawyers" was published on March 19, 2010, according to the notice's text.

Which is quite interesting, given that one of the lawyers welcomed by the announcement has apparently been with this firm since 2004, according to the very same news release.

Huh?

(Better late than never for professional announcements, I guess?)

The phrases "one of the top estates lawyers," "one of the top family lawyers," and "one of the best family lawyers" also make regular cameos in the online announcement.

This appears potentially problematic, in view of the commentary to Rule 3.01 (2) of the Ontario Rules of Professional Conduct, which precludes "suggesting qualitative superiority to other lawyers" in professional marketing materials.

But as far as keyword spam goes, this is apparently the natural order of things.

Does anyone know - are these sorts of monstrous affronts to the English language created solely through automated means, or are humans actually involved?

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

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Spam Art and Solicitor-Client Confidentiality

I must confess to at least a grudging admiration for the unyielding, malicious genius demonstrated by spammers and black-hatters in their efforts to tempt - or frighten - unwitting recipients into opening virus-laden emails.

Their ability to ride the waves - in real time - of the hot trends, fashions, issues and anxieties of the the day to grab attention would impress any marketing professional.

Perhaps the spammer's subject line will come to be seen as an underground art form, some day.

Less graceful than some spam, this virus-infected message, purporting to contain a Notice of Underreported Income from the IRS, was filtered by my ISP this afternoon:

Of course, here in Canada, the receipt of threatening-looking email from the IRS strikes little fear in the heart. We know it is fake. In America, however, I'd think this email might have fairly high click-through and viral-payload delivery percentages

On a related note (as to the issue of whether I should even be writing about this email), I've been having a good discussion today with my friend Michael Carabash about whether solicitor and client confidentiality attaches to unsolicited spam email of a professional nature received by lawyers.

My take is that it generally does.

We may not owe a duty of care to unsolicited spammers, but we generally do owe a duty of confidentiality with respect to all emails received at our professional addresses where it would be reasonable to assume confidentiality is expected. Where the email contains what may be a bogus "request for legal representation" that could well be the introductory salvo in an attempted fraud (we get these suspicious emails quite frequently), the issue becomes more complex.

Nonetheless, I'd still come down uncompromisingly on the side of maintaining confidentiality as to those who contact us - absent compelling, if not absolute, proof of fraud.

I've published the identifying "IRS" information above because of its "no-reply" email address, which eliminates any concern that the email could be from a real person, or alternatively, be a spoof of a real person's identifying information. As well, it does not appear to be related to legal services at all.

Otherwise, I would not ordinarily consider publishing or disclosing it.

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

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Government of Canada Introduces Federal Anti-Spam Bill

CBC reports today on potent anti-spam legislation introduced Friday by Canada's Conservative government.

In the article, Industry Minister Tony Clement commented on the proposed Electronic Commerce Protection Act:

... Clement said the new legislation would give the government more power to prosecute spammers, and help protect consumers and businesses.

"Our proposed Electronic Commerce Protection Act will deter the most dangerous forms of spam, such as identity theft, phishing and spyware, from occurring in Canada, and will help drive spammers out of Canada," he said in a speech to the Greater Toronto Marketing Alliance, before the legislation was introduced.

The act would grant the Canadian Radio-television and Telecommunications Commission expanded powers to deal with spammers, including the ability to impose fines of $1 million against individuals and $10 million against businesses, Clement said Friday.

For full text of the proposed legislation, see Bill C-27, The Electronic Commerce Protection Act.

(h/t - Toronto Marketing Blog)

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

EMPLOYMENT LAW • CIVIL LITIGATION • WILLS AND ESTATES • FAMILY LAW & DIVORCE

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