CASL Loophole?

9 December 2013
Parliament buildings of canada

Parliament buildings of canada (Photo credit: Wikipedia)

In looking at the new regulatory framework for CASL which was just released late on Tuesday of last week by [acp title=”CASL81000-2-175 (SOR/DORS)” author=”Industry Canada” media=”website” year=”2013″ month=”December” day=”3″ id=”IC_CASL-01″ url=”http://fightspam.gc.ca/eic/site/030.nsf/eng/00273.html”]{author}[/acp], I noticed a this bit:

3. Section 6 of the Act does not apply to a commercial electronic message…

(f) if the person who sends the message or causes or permits it to be sent reasonably believes the message will be accessed in a foreign state that is listed in the schedule and the message conforms to the law of the foreign state that addresses conduct that is substantially similar to conduct prohibited under section 6 of the Act;

I’m sure that this bit was created for the purpose of foreclosing American professional spam plaintiffs from being able to use CASL to generate revenue, like we saw when CAN-SPAM was first getting off of the ground. But, it brings up the interesting question of how you form a “reasonable belief.”

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In other words, it would seem most reasonable to assume that addresses that end in .ca would be Canadian. But, what about people who use Gmail addresses? These addresses will end in .com.

I expect that the answer will be fairly fact intensive. An examination of things like “Do you have a Canadian mailing address on file?” or “Was the address collected in a Canadian bricks-and-mortar store?” will end up being determining factors. But, what about websites? Should website owners (especially owners of websites in the US) fairly well disregard CASL when it comes to collecting email addresses on their website if they don’t ask for any other information?

Time will give us the answer to this question, but for now, it looks like the Canadians may have opened up a fairly large loophole.

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