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Guest editorial: Anti-spam law resolves little

By | Victoria Times Colonist, Vancouver Sun on Jul 29 2014

From In the News

Canada’s anti-spam legislation, which took effect July 1, is a big solution to a small problem. It creates headaches for charities and innocent people within the country, while doing nothing to stem the flow of scurrilous emails from abroad.

The intent of the law is reasonable: To stem the flow of unsolicited electronic commercial messages that clutter the nation’s inboxes.

What’s unreasonable is the scope of the law, because it does not differentiate between someone trying to peddle the latest line of lingerie and charities soliciting funds. The heavy penalties — up to $1 million for an individual and $10 million for a company — could conceivably fall on a West Shore parent advisory council looking for donations, a neighbour sending out garage-sale notices in Oak Bay or a person announcing a new home-business venture on Facebook.

While that’s not likely to happen, there’s no guarantee it won’t. The law is vague and confusing, and makes little provision to exempt charities from its rules. Non-profit organizations, fearful of the heavy and long arm of the law, are scrambling to find out how they will be affected by the legislation. Charities depend heavily on using their email lists to solicit donations; some of them are concerned about their very survival.

Spam is the scourge of electronic communications. No one is immune to that grimy flood of unwanted, unsolicited messages, nearly all aimed at separating people from their money by one dirty trick or another. Who could object to legislation that seeks to eliminate spam?

A summary of the legislation, as posted on a federal government website, is straightforward: “To send a commercial electronic message to an electronic address, you need the recipient’s consent, to identify yourself, to offer an unsubscribe mechanism and to be truthful.”

Many legitimate businesses use electronic messaging, and most already conform to the law’s requirements. A clerk gets a customer’s permission to send advertising emails. The emails clearly identify the sender. A customer can unsubscribe at any time to prevent further emails.

To do otherwise is to alienate customers; the legislation turns into law what is already sound business practices.

But the legislation should have been more specific, writes Derek From, a lawyer for the Calgary-based Canadian Constitution Foundation, in a column for Troy Media.

“Effectively, what it does is make all non-personal electronic messages illegal, unless you can find an exemption somewhere in the (legislation) or its regulations,” From writes. “This is the inverse of what sensible legislation does. Sensible laws target bad behaviour, not render all behaviours bad until proven good. Also, a single email sent to a single recipient can run afoul of the law because there is nothing in (the legislation) saying that spam must have multiple recipients, multiple iterations, or the like.”

As the legislation contains no definition of “commercial,” it places a huge burden on charities, he writes. He says it’s difficult to believe the government is trying to punish charities.

“Likely, it’s just sloppy legislation,” he says.

But here’s the kicker, as expressed in a statement on the government website: “Canada’s anti-spam legislation allows Canadian enforcement against spammers operating in Canada.”

The vast majority of spam comes from outside Canada, and the government is powerless to do anything about it. Scammers in Nigeria, Russia and China are not quivering in their boots at the prospect of being busted by the Canadian Radio-television and Telecommunications Commission.

Spam will continue to flow as it always has, but most people use spam filters to reduce it to a mere irritation.

Unlike the new legislation, which, unless it is altered, has the potential to create more problems than it prevents.

Guest editorial from The Victoria Times Colonist

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