Lots of time and space has been dedicated to an examination of Canada’s new anti-spam law. And we have been watching it too. For a general overview of the law, I would suggest reading Al Iverson’s ExactTarget blog post about it. Today, though, let us consider a burning question in the eyes of marketers: “Does this law apply to me, even if I make a mistake?”
The terms of the law are pretty simple. It covers email sent to, from, through, or accessed in Canada. The rub comes when the impact of those terms are examined.
People get used to thinking in terms of criminal law, where mens rea (or a “guilty mind”) is required as a part of a criminal act. Then we want to pull that idea over with us to civil law and look at the intent of the actor in determining if there is actually a problem.
But, civil law is not criminal law. There is no requirement that an action be accompanied by a guilty mind. All that is required is that the civil statute be broken.
While American law is not Canadian law, I think that it is instructive to consider an example from our jurisprudence on this question: the trebling of damages under the Telephone Consumer Protection Act (TCPA).
The TCPA prohibits certain things including making pre-recorded telephone calls, and it includes a general private right of action. That means that if you make a pre-recorded telephone call, the recipient of that call can sue you in a court of appropriate jurisdiction for damages as set by the law. The law also includes a section that allows a court, at its discretion, to treble statutory damages from $500 per violation to $1500 per violation, if the Judge determines that the violation was done “willfully or knowingly.”
Now “willfully or knowingly” sounds like it is a requirement to determine the state of mind of the caller, right? But, that is not true. In a 2010 case (Sengenberger v. Credit Control Services, Inc.), a judge trebled damages based upon a finding that such messages were sent voluntarily. Specifically, the judge pulled together a history to support his determination:
While the TCPA does not define willful, the Communications Act of 1943, of which the TCPA is a part, defines willful as “the conscious or deliberate commission or omission of such act, irrespective of any intent to violate any provision, rule or regulation.” In Dubsky v. Advanced Cellular Communications, Inc., No. 2008 cv 00652, 2004 WL 503757, at * 2 (Ohio Com. Pl. Feb. 24, 2004), the court found that in the context of the TCPA, the term acting “willfully” means that “the defendant acted voluntarily, and under its own free will, regardless of whether the defendant knew that it was acting in violation of the statute.”
Notice the line “irrespective of any intent to violate” because that is important in this context. What really mattered was that the calls were not made under duress.
So, how does all of this apply to Canada’s new anti-spam law? The only requirement found in the law is the one that we have already mentioned: A message must be sent to, from, through, or accessed from within Canada. There is nothing in the law about registries, guesses, or intents.
If your mail file contains Canadian addresses, then the law applies. So, it all comes down to a single question: How well do you know your recipients?
If you are following your email service provider’s rules then you probably know your recipients pretty well, and you really should not need to care much about the law anyway. After all, our policy states that our clients “certify that they will not use rented or purchased lists, email append lists, or any other list that contains email addresses captured in any other method than opt-in.” Marketers who are paying attention to permission will have a better idea of where their recipients are located, and even if they do not, they are complying with the biggest responsibility that they have under the statute: get permission before sending commercial messages.
On the other hand, marketers who are purchasing or renting lists have to take someone else’s word for it that permission exists and/or that there are no Canadian addresses on that list. And worse, those who are purchasing append data have even less to work with. Often, appended data is really someone’s best guess as to a match. Sometimes, perhaps even often, that data is spot on, but all that it takes is one mistake in a file to send to a person in Canada instead of Kansas and thus subject the marketer to liability. Why? Because all that matters is that they meant to send the mail, not that they did not mean to send the mail to Canada.
Note: I am not an attorney licensed to practice in any jurisdiction. I can only provide my own understanding as an expert in email related issues. For actual legal advice, you need to pay an attorney for his time so that the vagaries of the law as they may apply in your specific circumstances can be accounted for.