It’s a routine occurrence: lawyers sending emails to potential clients sharing interesting legal publications or tips, inviting them to firm functions or simply wishing them a happy holiday via electronic greeting card.
Under the new Canadian Anti-Spam Act, expected to come into force later this year or in 2014, these seemingly innocuous communications could fit the federal definition of spam unless practitioners obtain a recipient’s express consent.
“What bothers me is that one email sent to one person can be considered spam,” says David Canton, a business lawyer with the London, Ont., firm Harrison Pensa.
“I think the whole legislation is fundamentally flawed. It has drafted spam so broadly that it does way beyond what the average person would consider to be spam,” says Canton. “They have taken a broader approach to spam than I think the vast majority of Canadians would take.”
The legislation aims to deter spam by regulating unsolicited commercial electronic messages, including emails, text messages sent to mobile phones, and direct messages sent to social networking accounts, such as Twitter and Facebook.
Lawyers who have followed the evolution of the anti-spam law, which received royal assent in December 2010, say businesses, including law firms, need to start preparing for the coming legislation, to avoid being caught in violation.
“I would caution to take action as soon as possible,” advises Alexandra Nicol, an associate with Borden Ladner Gervais in Montreal. “It’s important that people understand that this doesn’t just touch what we typically understand to be spam, it really touches electronic messages, I dare say most electronic messages that are sent out.”
Law firms and sole practitioners are among the businesses that will be potentially vulnerable to breaking the law because they often send electronic messages that are considered business promotion.
For example, lawyers routinely send messages to contacts with whom they have not done business — perhaps an information bulletin, an article, a legal development in a particular area or other material that may be of interest — in hopes that the contact will need their services down the road, says Bernice Karn, a partner with Cassels Brock & Blackwell LLP in Toronto.
Canton cites an example of lawyers sending invitations to firm events to their casual contacts, another type of communication that could fit the definition of “commercial electronic message” because it is considered to be business promotion.
Sending these sorts of messages without advance consent could be considered spam unless the communicators and recipients have a pre-existing business or personal relationship or, in some circumstances, have made a connection through a third-party referral. Another exception that could exempt the messages from spam status would be a response to an electronic inquiry from the recipient.
“I think every business, including a law firm, is going to have a big job ahead of it to look at how people use email, the types of messages that get sent, what requires consent and what doesn’t require consent and anything that does require consent, they’re going to have to get going now to get consent in place,” says Karn.
Practitioners cannot obtain consent through opt-out methods, such as requiring a recipient to uncheck a box if he or she does not want to receive future communications. Messages also must contain the sender’s contact address and a clear and easy way to unsubscribe from future communications.
The latest development – supporting regulations released in January by Industry Canada – give a bit of a break to businesses by broadening the exceptions to the law.
“They’ve come up with a number of additional exceptions,” says Karn. “They have added a few situations where we can all rest easier, where the act does not apply.”
The regulations, which were the second round issued by Industry Canada following an outcry from industry, clarify key terms and concepts contained in the act. The regulations that have eased pressure on businesses include:
- Business-to-business communications: new exemptions for commercial electronic messages that are sent within a business or between businesses that already have a business relationship, when the messages are sent by an employee, representative, contractor or franchisee and the communication is relevant to the business role. “I thought this was implied, but it’s good to see it there,” says Canton.
- Third-party referrals: a new exemption in which businesses can send unsolicited messages without consent when the sender has a third-party referral who has an existing business or personal relationship with the recipient. “That was a big concern for a lot of people because of lot businesses, real estate agents and lawyers for that matter, rely on referrals to get business,” says Karn. The exemption, however, only applies to an initial communication.
- Personal relationships: a broadened definition that removes a previous requirement that the two parties had to have communicated in the previous two years and met in person at some point. The new regulations are more subjective and base the meaning of a personal relationship on a non-exhaustive list of factors, including that the relationship can be a virtual one, rather than in person. “Now it more in line with the real world,” says Nicol.
Canton asserts that the recent regulations “are more like crumbs” than significant changes. He says they are minor tweaks to a law that, in its quest to stop unwanted, bulk spam, is overly burdensome on businesses.
The regulations follow information bulletins released last October by the Canadian Radio-televison and Telecommunications Commission, which were intended to clarify the law, mainly by spelling out the terms of how to obtain consent and allow recipients to unsubscribe.
The CRTC is the enforcer of the act, which carries penalties of up to $1 million for individuals and $10 million for corporations.
There will be a three-year transition period for businesses and individuals to meet the act’s requirements.
Despite the perceived broad reach of the legislation, lawyer Molly Reynolds predicts the CRTC, which is planning to set up a spam reporting centre, will not have the resources to pursue lawyers and other business professionals.
“I’d be surprised…if law firms sending commercial electronic messages to clients fall into the enforcement radar,” says Reynolds, an associate with Torys LLP in Toronto. “It probably won’t be a problem for law firms but it would be pretty embarrassing if, as a law firm, you were outside the law.”
Janice Tibbetts is a freelance journalist in Ottawa.