Complying with Anti-Spam Legislation

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by Barbara Florio Graham

Canada’s anti-spam legislation came into effect on July 1, 2014. The law generally prohibits individuals and businesses from sending commercial email to Canadians without their consent.

Three federal agencies that work at arm’s length from the Government share responsibility for enforcing the legislation: the Competition Bureau, the Office of the Privacy Commissioner of Canada and the Canadian Radio-television and Telecommunications Commission (CRTC).

But in July, the Government of Canada suspended the implementation of certain provisions in Canada’s anti-spam legislation (CASL) in response to broad-based concerns raised by businesses, charities, and the not-for-profit sector.

These provisions, known as private right of action, would have allowed lawsuits to be filed against individuals and organizations for alleged violations of the legislation.

It seems likely the law was unenforceable as written, especially since it’s administered by three separate agencies.

I handle a great many email messages daily. I can’t have my ISP filter incoming messages from strangers because these may be potential clients requesting mentoring, or individuals who find me through a Google search for my Canadian Libraries List or my books.

I also query markets in Canada, the U.S. and abroad, and send occasional manuscripts on spec to magazines. Although the law as written defines commercial electronic messages (CEMs) as unsolicited messages attempting to sell a product or service, I assume this doesn’t apply to one-off messages from individuals to other individuals.

Most actual spam does not come from legitimate organizations, but rather from individuals who harvest emails from various sources and hope to trick the recipient with offers of something free.

Certainly, if a recipient complains that someone is sending email repeatedly, and hasn’t responded to requests to stop, the CASL could be invoked. Whether or not the government will bother to track the offender down and prosecute is another matter.

Still, organizations have had to scramble to ensure they are complying with the law, which states:

“The onus of proving consent always remains with the person(s) sending, causing or permitting the sending of CEMs. This is the case even if the sender is relying on an existing business or non-business relationship that was created prior and post July 1, 2014 (the implementation date of CASL).”

Senders are required to obtain and retain evidence of express and implied consent from potential consumers and subscribers who agree to receive CEMs.

The National Capital Region branch of Canadian Authors Association used to contact members through an individual’s Yahoo email account, and would add or remove people if they requested it. But they didn’t keep clear records, and there was no way for people to unsubscribe via the email message itself.

After Canada introduced the new anti-spam legislation, they began to circulate a form at their meetings asking if participants wanted to be added to the email list. They keep all of those sheets so they have a record of these handwritten requests. They also have “Subscribe to the Byline” and “Subscribe to our notices” buttons on their website. If people sign up that way, they’re clearly giving their permission.

When she receives notice of a new member from the national office, the Communications Director sends an email message asking if the member wants to receive emails notices. She records the response.

The CAA uses MailChimp, which generates the unsubscribe option and keeps a record of all those who subscribed via the website or were added by the branch, as well as those who unsubscribed, so all that information is available if requested.

That’s a wise choice for anyone distributing a regular newsletter.

The Canadian law allows communication with “implied consent,” which covers “an existing business relationship based on a previous commercial transaction with the recipient; or having an existing non-business relationship based on, for example, membership in your club, or if the recipient participated as a volunteer for your charitable organization, or where a person makes their email address publicly available by publishing it on a website.”

The sender is supposed to be able to provide evidence of express and implied consent (e.g. audio recordings, copies of signed consent forms, completed electronic forms) from consumers who agree to receive CEMs.

One has to assume this only applies to bulk communications (going to multiple addresses in the same email), or repeated emails to the same individual without a response indicating the recipient wants to continue receiving these.

Writers sending queries, small business owners or publishers sending information to the media, and similar email communication with potential clients is likely not included.

It’s wise to be aware of this law and make sure you comply. Do not send unsolicited emails to strangers whose addresses you obtain from social media, friends, or other means. If anyone asks you to stop sending emails, do so immediately, send an apology, and keep a record of that exchange.

If you send any kind of bulk communication via email, make sure you have an unsubscribe option, and keep records of those who subscribe as well as those who have opted out.

Helpful links:

This article was first published in Freelance Writer’s Report.

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