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Canadian Anti-Spam Law - are PR professionals now criminals?

We've crossed into the twilight zone here folks.

On July 1, 2014, Canada will enact its anti-spam legislation that will make it illegal to communicate with someone without their consent. The fine for communicating with someone without their consent can be $1M for an individual and $10M for businesses.

Now, the law's intent is logical - to basically stop spammers. Unfortunately though, the government, instead of writing the law around "unsolicited, automated marketing communications" (which is what the law is really all about) instead uses the term "commercial electronic messages".

According to the act:
(2) For the purposes of this Act, a commercial electronic message is an electronic message that, having regard to the content of the message, the hyperlinks in the message to content on a website or other database, or the contact information contained in the message, it would be reasonable to conclude has as its purpose, or one of its purposes, to encourage participation in a commercial activity, including an electronic message that
(a) offers to purchase, sell, barter or lease a product, goods, a service, land or an interest or right in land;
(b) offers to provide a business, investment or gaming opportunity;
(c) advertises or promotes anything referred to in paragraph (a) or (b); or
(d) promotes a person, including the public image of a person, as being a person who does anything referred to in any of paragraphs (a) to (c), or who intends to do so.

 The issue with how the law is structured is that it encompasses a TON of business activities that are not spam orientated.

For instance:

  • If a business' sales force now makes an unsolicited call or email to another business (which is what sales folks do and its how many business relationships develop), they could be facing a $10M fine. 
  • If someone is looking for a job and emails the owner of a business they are technically breaking the law. The email is unsolicited and is for the purpose of "selling a service". 
  • If a business that makes napkins calls a restaurant to inquire about supplying them with napkins, they could be fined $10M. 
  • Scariest of all, if a PR person contacts a reporter without prior consent they technically could be fined $1M. If a reporter contacts an executive at a business (looking for comment for instance) they could technically be fined $10M (if they call the PR person that's fine, but calling someone who isn't specifically tasked with answering their call would technically be considered spam).  
The Canadian government has royally botched what the intent of the law was originally. Instead of blocking spammers they have essentially blocked all (or at least most) business communications between parties that do not already know each other (and who have expressed to each other the are ok with future communications). 


The (only) one that seems important for communications folks is:

c.    commercial electronic messages where the recipient has provided or published his or her electronic address without any restriction, and the message relates to the person's job or business.

So essentially, if the person's email address is on a Web site you can contact them without concern (unless of course they explicitly state restrictions on who may contact them). 

Because of the expansive nature of how the law was written though no one really knows what is or is not allowed. Technically if someone contacts you that you do not want contact with (even though they have no way of knowing this) that can be considered "spam" and you could be subject to fines. 

Ultimately the government is going to have to clarify this law in my opinion. As it stands right now it applies to all communications, when in reality it should be apply only to unsolicited, database-driven, mass-marketing activities. 

If it applies to merely "commercial electronic messages" then the Canadian government has essentially put a bullet through the head of the Canadian economy, because to "do business" you have to be able to "communicate" with other businesses and people.

For PR folks specifically, as the law is currently written, PR is now an illegal activity to engage in. Unless an editor lists their email address publicly, you are technically breaking the law by contacting them. 

Now, I have faith that both PR professionals and reporters, collectively, will essentially ignore the law as it is written and let common sense rule the day. But that doesn't change how utterly incompetent the Canadian Government was in rolling out this new legislation. 

Truly cringe-worthy work by the folks in government.  




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