Lobbyists put Canada’s new anti-spam law at risk

Earlier this year, the anti-spam community thought it had scored a major win by enacting the toughest anti-spam laws in the world, right here in Canada. Then today, Michael Geist, a law professor and copyright expert at the University of Ottawa, writes that, “it is déjà vu all over again as the government works to finalize the regulations for the anti-spam legislation and the same groups make many of the same arguments.” Apparently, the Canadian anti-spam law is too tough on marketers, or so they would like us to believe. Fortunately, the law has been passed – it attained “royal assent” in December 2010. What’s being held up are the regulations – the finer points that set out the precise meanings of things in the Act itself.

Canada’s new anti-spam law, titled the Fighting Internet and Wireless Spam Act, sets out some tough requirements on marketers, which are designed to prevent them from sending us email we don’t really want. Unlike the American CAN-SPAM act passed several years ago, the Canadian law requires marketers to obtain your consent before sending you email. But it’s the penalties that really differentiate the Canadian act from its American cousin. Marketers can be sued for violations of the Act even if the email they are sending is originating from another country. This empowers Canadians to sue firms in the US and elsewhere, even though the anti-spam laws in those countries may not be as strict.

Here’s the section that makes me the most excited:

48. (1) A person who alleges that they are affected by an act or omission that constitutes a contravention of any of sections 7 to 10 of this Act or of section 5 of the Personal Information Protection and Electronic Documents Act that relates to a collection or use described in subsection 7.1(2) or (3) of that Act — or that constitutes conduct that is reviewable under section 74.011 of the Competition Act — may apply to a court of competent jurisdiction for an order under section 52 against one or more persons who they allege have committed the act or omission or who they allege are liable for the contravention or reviewable conduct by reason of section 53 or 54.

I know of at least one email technology expert in Canada who is looking forward to setting up a partnership with a litigation practice, specifically to go after American marketers who fall afoul of the new Canadian anti-spam law. I suppose he’ll have to wait a little longer now.