Lora Bentley spoke with Charles Lupien, an associate at the Canadian law firm of Fasken Martineau, about Canada's new anti-spam act and what it will mean for those who do business in Canada or with Canadians.
Bentley: The last I heard, the Anti-Spam Act had been passed but had not yet gone into force. That was in April, I think. What's the latest? Are the regulations in place now?
Lupien: As you may recall, the act was supposed to be coming into force in the fall. Prior to that there was at least one regulation that was supposed to be put into the proposed act to clarify some of the language. But two regulations just passed in early July. They deal with two different topics and they're from two different organizations of the federal government altogether.
"At this point I don't think most people even know about the law. And it's hard to get ready for something that you don't know about. Even in the general Canadian newspapers, it's not something that you hear about."
Bentley: What do they do?
Lupien: They basically clarify some things in the law. Some of them are purely technical and are not necessarily interesting. Others clarify, for instance, what constitutes a "family relationship" for purposes of the act. Or they set out exceptions for nonprofits.
Bentley: So what happens now?
Lupien: The two regulations are up for comments until September. Keep in mind that they were supposed to be published in April when the law first passed.
Lupien: So based on that delay, I'd guess that the in-force date will also be pushed back a bit. Instead of early fall, I'd say we're looking at late fall, or maybe December. There's the review process to be done. Then they will integrate the regulations (or not) and republish the act. I would not expect the law will come into force as early as September.
Bentley: But that doesn't change much. The law will still come into force.
Lupien: Yes, and whenever it does, it will still be too soon for some people, I believe.
Bentley: Why is that?
Lupien: At this point I don't think most people even know about the law. And it's hard to get ready for something that you don't know about. Even in the general Canadian newspapers, it's not something that you hear about.
Bentley: Once they know, given the time they do have, what can companies do to prepare?
Lupien: One thing is to go ahead and get consent now, before asking for consent is actually considered a violation of the law. Another thing that we are helping companies to do is make sure that their existing database of emails will be compliant once the law does come into force. That process has proven to take longer than I thought it would.
Bentley: What does that process involve?
Lupien: Basically what people do is take their email lists and tag, if you will, each entry with a potential exception to the law. The easiest one to apply is the one that says if you've had a client relationship with that recipient in the last two years, you would benefit from the exception.
So the first thing people do, usually, is go through and see who was a client in the last two years. Then they'll put those people in a separate list until the two-year limit is reached. After that, we continue exception by exception to see how much of our existing list we can put in the "compliant" pile.
At the end of the day, there's always this sublist of people that we either don't know how they got on the list or we don't know who they are, so we either purge them or we try to get consent. Or we accept the risk of sending them mail. That's the third option.
Bentley: You mentioned that the process was long and difficult. Other than the time factor, what makes it so?
Lupien: Well, from a technical standpoint it takes a long time. But from a business or organizational standpoint it's hard to do because there's a lot of pushback from marketing departments that don't necessarily want to see their lists shrink. What we've seen so far is that doing this exercise can mean that 40 percent of your list will be purged.
Bentley: What are they risking if they don't go through this exercise?
Lupien: Well, they can be sued for up to $10 million per offense. They basically become a sitting duck, with a big target on their heads because they have the means to pay the fine.
When we tell clients this, then they come in and want to know more about getting ready, but very rarely do we have clients come in ahead of time and say, "OK we want to be ready when this new law goes into force."
And if it's true for Canadian companies, for American companies it's even worse. So we're trying to get the word out.