In looking at the new regulatory framework for CASL, which was just released late on Tuesday of last week by Industry Canada, I noticed this bit:
3. Section 6 of the Act does not apply to a commercial electronic message…
(f) if the person who sends the message or causes or permits it to be sent reasonably believes the message will be accessed in a foreign state that is listed in the schedule and the message conforms to the law of the foreign state that addresses conduct that is substantially similar to conduct prohibited under section 6 of the Act;
I’m sure this bit was created to prevent American professional spam plaintiffs from using CASL to generate revenue, as we saw when CAN-SPAM was first getting off the ground. But it brings up the interesting question of how you form a “reasonable belief.”1
In other words, it seems most reasonable to assume that addresses ending in .ca are Canadian. But, what about people who use Gmail addresses? These addresses will end in .com.
I expect that the answer will be fairly fact-intensive. An examination of questions like “Do you have a Canadian mailing address on file?” or “Was the address collected in a Canadian bricks-and-mortar store?” will be a determining factor. But what about websites? Should website owners (especially owners of websites in the US) fairly well disregard CASL when it comes to collecting email addresses on their website if they don’t ask for any other information?
Time will give us the answer to this question, but for now, it looks like the Canadians may have opened up a fairly large loophole.
Footnotes
- CASL81000-2-175 (SOR/DORS), Industry Canada, Regulations Amending the Electronic Commerce Protection Regulations (CRTC) (Dec. 3, 2013), http://fightspam.gc.ca/eic/site/030.nsf/eng/00273.html. ↩︎
About the Author
Mickey Chandler is a Consultant & Attorney with over 28 years of experience in Email Deliverability & Privacy Law. He has a strong background in email authentication infrastructure (SPF, DKIM, DMARC), ISP and mailbox provider relations, anti-spam policy and compliance, CAN-SPAM and state anti-spam law gained through overseeing the Abuse & Compliance team at Salesforce Marketing Cloud, originating the ISP relations role at Informz (now part of Higher Logic), and working in the fight against spam since 1997. He holds a B.A. in Government, a B.S. in Computer Information Systems, and a J.D. from the University of Houston Law Center. He is a certified CIPP/US professional and a certified CIPM professional.
