Stopping Speech or Spam in Canada?


Web threatKiln     Everywhere we look the internet is under assault in one way or another.  Countries are banding together to regionalize the internet so that it is less worldwide and more immune from the NSA by creating a Euro-web or other nationalized webs in Iran, Russia, Turkey, and wherever.  Cable monopolies are handling the FCC like a red-haired stepchild and trying to block access and create variable speeds on the internet highway in the US.  Access is strained everywhere, and costs are rising.  In fact the very utility of the internet as a necessity for communication seems endangered, even as communications authorities in North America prepare to open the debate on classifying the internet formally as a public utility.

And then there’s the new Anti-Spam Legislation in Canada (CASL) which seems to be designed by either intent or incompetence to curtail almost any communication, including those of nonprofits like ACORN Canada and thousands of others.  Columnists are moaning about “regulatory overreach.”  Lawyers are having a huge payday, largely because no one seems to have a clue what is banned and what is allowed through so-called “implied consent” versus explicit consent versus a right to privacy.

Total consensus seems to exist on two fronts.  One is that the fines are crazy high ranging from a $1 million for individuals to $10 million for corporations.  The other universal agreement is that the anti-spam legislation will not stop 98.5% of the stuff coming into your in-box that in fact is spam from countless sources from Nigeria to wherever.

All of this is especially worrisome to nonprofits who have embraced e-communications as an inexpensive and effective way to keep their members informed, activate support, and even mobilize resources.  From the south side of North America where we still scream about “freedom of speech” night and day, I would have thought that communications by nonprofits and especially membership organizations were by definition NOT commercial electronic messages (CEMs as the constantly refer to them).  Unfortunately it’s not a clear call, as this legal advisory tries to spell out:

Yes, section 6 of CASL applies, but consent may be implied where CEMs are sent to members of an association, club or voluntary organization. When sending CEMs to your membership based on implied consent, you should ensure that you are only sending to members.
“Membership” means the status of having been accepted as a member of a club, association or voluntary organization in accordance with its membership requirements. You should also ensure that your organization is a club, association, or voluntary organization that is:
·         a non-profit organization,
·         organized and operated exclusively for social welfare, civic improvement, pleasure or recreation or for any purpose other than personal profit, and
·         no part of its income is payable for the personal benefit of any member, proprietor or shareholder unless that entity is an organization whose primary purpose is the promotion of amateur athletics in Canada.
The CEM must still respect the other two requirements – it must contain the identification information and unsubscribe mechanism.


So, ACORN Canada may be OK, but a lot of others, especially those nonprofits that are not membership-based, are going to have to spend money they don’t have to solve a problem that doesn’t exist while risking fines so onerous that they would be put out of business.  It’s hard to avoid the conclusion that the internet has become the same kind of threat in Canada now as we read about in Iran, Turkey, and elsewhere, and that this is way more about curtailing speech, than stopping spam.