What many people consider everyday business communication is potentially threatened by Canada's new anti-spam law (CASL), despite government attempts to fix it. In an effort to address the high volume of spam, CASL actually threatens to strangle all business communication and to severely hamper the ability of legitimate businesses, including record labels and artists, to increase their networks or build a career.
The major problem is this: CASL defines all emails, SMS texts and social media sent in a commercial context as “commercial electronic messages”, or “CEMs”, and then bans sending any such messages unless you have prior consent or unless they fit into a narrowly defined exception. Oh, and by the way, you are not permitted to even ask for consent in an electronic message.
In addition, CASL requires an unsubscribe option in all electronic communications. Most people are accustomed to incorporating this function into emailed newsletters but seldom in text messages and regular emails. All business operators will also be required to maintain a database with the details of all business/personal relationships and removals of consent. This compliance will prove costly.
CASL will particularly hurt indie labels, start-ups, and bands struggling to build a base and a career. Start-ups may lack existing business relationships. They have to rely on personal relations and referrals to build their label or their fan base. CASL will stand in their way.
Last month Industry Canada published revised draft Electronic Commerce Protection Regulations
, which fail to adequately address these major flaws.
Bands and labels will struggle to build fan bases.
Social media may be hampered, and you may have to unsubscribe fanbases – because you can’t confirm whether they continue to want to receive electronic updates. If you have electronic newsletters or mailing lists, you may need to remove recipients, because you no longer have consent to send them, and you’re prevented from seeking consent electronically.
An independent label wouldn’t be able to “cold call” a venue through email or other electronic communication to recommend they have a concert featuring one of their artists. Bands would face similar limitations to self promotion.
- Your digital distribution of such things as music, videos, and e-zines delivered by email or instant messaging may trigger the legislation, especially if they contain links to additional corporate information like your website or logo.
- Social media campaigns may be crippled. Express consent will be required before forwarding communications to neighbours, schoolmates, acquaintances, colleagues, and certain extended family members.
You may need to invest in expensive processes to comply with the new across the board requirements for express consents, disclosures, and unsubscribe formalities.
You may also need to make substantial investments in new tracking and compliance systems or face the threat of class action law suits from the expected CASL litigation trolls under the new private right of action.
What’s the risk to you?
The potential penalties are severe. Individuals who violate the new rules, or even aid in doing so, could be liable for fines of up to $1,000,000 per violation. Companies could be liable for up to $10,000,000 per violation. And the legislation opens the door to private lawsuits -- which may include class action lawsuits.
Where do things stand?
Music Canada has worked closely with organizations and major companies including AVLA and Re:Sound, to point out flaws requiring fixing. But despite the fact that the Government has repeatedly tried to draft regulations to fix flaws in the legislation, the most recent draft released January 5 does not fully address the problems. The regulations will need to be finalized and approved by Cabinet, which may happen sometime toward the end of 2013.
What should you do?
Contact your MP
to tell them that you are concerned about the impact of CASL on legitimate business communications.
Follow this link
to an “advocacy action” tool from Music Canada to raise awareness of the issue.
Analysis by Barry Sookman
Submission of Philip Palmer
(who oversaw CASL at Industry Canada)
Coalition of Business and Technology Associations