March 2012 - Law - Anti-Spam Regulation

What's it all about? How anti-spam legislation can affect your firm

http://www.cba.org/CBA/PracticeLink/03-12-SS/05.aspx

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How anti-spam legislation can affect your firm << Back

What's it all about? How anti-spam legislation can affect your firm

By Ava Chisling - a media lawyer and an award-winning editor, based in Montreal.

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The first thing you should know about the new "anti-spam" legislation is that it is not about spam - it you and your business, and it matters a great deal. A failure to understand this point before the law into force can put you and your firm at serious risk.

Shortened from the very long An Act to promote the efficiency and adaptability of the Canadian eco regulating certain activities that discourage reliance on electronic means of carrying out commercia and to amend the Canadian Radio-television and Telecommunications Commission Act, the Compe the Personal Information Protection and Electronic Documents Act and the Telecommunications Ac became known as CASL (Canada's Anti-Spam Law), presumably because it is much easier to say. sum up this wide-reaching important law as "anti-spam" is misleading. Yes, CASL will apply to thos send mass emails promoting ridiculous products, but it also applies to every single commercial elec message (CEM) sent in Canada: every email, every text message, from every person, company an organization. And that is why this new law matters.

"People see the anti-spam title in newspapers and in articles and think that it doesnâ&#x20AC;&#x2122;t apply to them in their minds, they don't send spam. They are already careful in who they send messages to," say Alexandra Nicol, who specializes in regulatory affairs at Borden Ladner Gervais. "But CASL targets commercial electronic messages. This is a legislation that involves a great number of authorities an should have been a good indication to people that it will have a wide impact."

CASL is expected to come into force later this year. It amends the various Acts listed in its long title imposes new requirements on CEMs. This means your emails and texts have to comply with both t applicable privacy laws and with CASL, and this may not be easy for the solo or small firm. In short limited exceptions, you will no longer be able to send a commercial email or text message to anyon not provided you with consent in advance. And if you do obtain the required consent, your message comply with content rules, mostly involving stating your identity and allowing the recipient to withdra consent/unsubscribe at any time. "CASL applies to any message sent to an electronic address, wh includes email, an instant messaging account, a telephone account, or anything similar," says Nico

An commercial electronic message is defined as "any electronic message that encourages participa commercial activity, regardless of whether there is an expectation of profit." Says Nicol: "The conten message and the intent of the message is what will be used to determine if it is commercial or not.

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What's it all about? How anti-spam legislation can affect your firm

http://www.cba.org/CBA/PracticeLink/03-12-SS/05.aspx

providing a link to your website? Are you sending it on behalf of your firm or yourself? It can be inte to all computer systems located or accessed in Canada, regardless of where the sender or recipien vicariously liable for the actions of their employees, and directors/officers can be held to be persona contravene CASL.

It is important to note that even one email can be a problem, which is another reason why the word to send out an email blast or a group email to contravene CASL. Any one of your emails or texts, se problematic if you do not obtain consent and follow the rules with care. Says Nicol: "If you go throug send through your company, I think you will find that most of them will be caught under CASL in the is not an immediate pay-off, usually the intent of sending a message from your company is to enco

Not complying with CASL can cost you $1 million (individual) or $10 million (company). You can als for false or misleading messages. And not only can you be fined by a regulatory body, you can also individual or a group of individuals can seek $200 per message received or $1 million per day, plus Nicol.

So what does all this mean to the small firm or solo lawyer? It means that your usual course of bus send out monthly legal bulletins, press releases, links to your website, a summary of your blog or a obtain the consent of every recipient in advance, unless they fall into the list of limited exceptions (f to name a few).

Requiring consent in advance will have a Catch-22 effect on businesses: How can you obtain cons allowed to contact the potential client to get consent? "It makes it so if you want to 'electronic cold c respect," says Nicol. This will affect small firms much more than big firms. Larger companies can si offline marketing (direct mail campaigns, for example). They have the budget for traditional advertis events. "[BLG] sends off bulletins to thousands of people that are on our distribution list. We do that have questions for us and perhaps become our clients or give us additional business. Law firms are and we take them very seriously."

Although all businesses are involved in electronic communications, some of CASL's requirements m to handle. "They have to develop policies for their messages and start obtaining consent now," say have had a free for all with all kinds of different forms of promotion and advertising and marketing, w the possibility of abuse and took steps to protect consumers."

Since CASL is not yet in force, there are steps you should be taking right now. "Make note of where information from before sending CEMs," says Nicol. "Mark down the types of consent you are gettin you collect business cards at functions, for example. People can start adapting the way that they m on different avenues that involve more one on one contact."

The ultimate effect of CASL, says Nicol, is that it may mean reverting to old school methods of adve becomes crucial to obtain new business. This might include speaking for free in your community, jo events, being active on popular websites like Facebook and Twitter, and lastly, make certain you ca requires developing a website for your practice that is constantly updated and contains information

Nicol believes no one will want to be the test case for this legislation. "You do not want to be that co action against, and you don't want to be the company that the regulatory bodies decide to investiga penalties in those first test cases. Take steps now to make sure it's not you who will be paying them

The CRTC recently released its final version of the anti-spam regulations earlier this month; Industr

Copyright Š 2012 The Canadian Bar As

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