Canada’s anti-spam law: Does it apply to me?
Much time and space has been dedicated to examining Canada’s new anti-spam law. And we have been watching it, too. For a general overview of the law, I would suggest reading Al Iverson’s ExactTarget blog post1 about it. Today, though, let us consider a burning question in the eyes of marketers: “Does this law apply to me, even if I make a mistake?”
The law’s terms are pretty simple. It covers emails sent to, from, through, or accessed in Canada. The rub comes when the impact of those terms is examined.
People get used to thinking in terms of criminal law, where mens rea (or a “guilty mind”) is required for a criminal act. Then, we want to transfer that idea to civil law and consider the actor’s intent in determining if there is actually a problem.
But civil law is not criminal law. There is no requirement that a guilty mind accompany an action. All that is required is that the civil statute be broken.
While American law is not Canadian, I think it is instructive to consider an example from our jurisprudence on this question: the trebling of damages under the Telephone Consumer Protection Act (TCPA).
The TCPA prohibits certain things, including making pre-recorded telephone calls, and it includes a general private right of action. That means that if you make a pre-recorded telephone call, the recipient can sue you in a court of appropriate jurisdiction for damages as set by the law. The law also includes a section that allows a court, at its discretion, to treble statutory damages from $500 per violation to $1500 per violation if the Judge determines that the violation was done “willfully or knowingly.”
“Willfully or knowingly” sounds like a requirement to determine the caller’s state of mind, right? But that is not true. In a 2010 case,2 a judge trebled damages based on a finding that such messages were sent voluntarily. Specifically, the judge pulled together history to support his determination:
While the TCPA does not define willful, the Communications Act of 1943, of which the TCPA is a part, defines willful as “the conscious or deliberate commission or omission of such act, irrespective of any intent to violate any provision[], rule or regulation.” In Dubsky v. Advanced Cellular Communications, Inc., the court found that in the context of the TCPA, the term acting “willfully” means that “the defendant acted voluntarily, and under its own free will, regardless of whether the defendant knew that it was acting in violation of the statute.”3
Notice the line “irrespective of any intent to violate” because that is important in this context. What mattered was that the calls were not made under duress.
So, how does all of this apply to Canada’s new anti-spam law and American senders? The only requirement in the law is the one we have already mentioned: A message must be sent to, from, through, or accessed from within Canada. There is nothing in the law about registries, guesses, or intents.
If your mail file contains Canadian addresses, then the law applies. So, it all comes down to a single question: How well do you know your recipients?
If you are following your email service provider’s rules, you probably know your recipients well, and you should not care much about the law anyway. After all, our policy states that our clients “certify that they will not use rented or purchased lists, email append lists, or any other list that contains email addresses captured in any other method than opt-in.” Marketers who pay attention to permission will know where their recipients are. Even if they don’t, they follow the most important rule under the law: get permission before sending commercial messages.
On the other hand, marketers purchasing or renting lists must take someone else’s word that permission exists and/or that there are no Canadian addresses on that list. And worse, those purchasing append data have even less to work with. Often, appended data is someone’s best guess as to a match. Sometimes, perhaps even often, that data is spot on, but all it takes is one mistake in a file to send to a person in Canada instead of Kansas, thus subjecting the marketer to liability. Why? Because all that matters is that they meant to send the mail, not that they did not mean to send it to Canada.
Note: While I am now an attorney licensed to practice in Texas, this post is not intended to provide legal advice and does not establish an attorney-client relationship. I was not an attorney when this post was originally written and could only provide my understanding as an expert in email-related issues. For actual legal advice, you need to pay an attorney for his time so that the vagaries of the law as they may apply in your specific circumstances can be accounted for.
- Al Iverson, Canada’s Anti-Spam Bill (C-28) Becomes Law, ExactTarget Blog (2010), https://web.archive.org/web/20140226225906/http://www.exacttarget.com/blog/canadas-anti-spam-bill-c-28-becomes-law/ (last visited Oct 23, 2024). ↩︎
- Sengenberger v. Credit Control Services, Inc., No. 09 C 2796 (N.D. Ill. May. 5, 2010). ↩︎
- Dubsky v. Advanced Cellular Communications, Inc., No. 2008 cv 00652, 2004 WL 503757, at * 2 (Ohio Com. Pl. Feb. 24, 2004). ↩︎
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