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Anti-spam legislation: A concern for HR?

Fines and penalties may force employers to develop training programs, rethink recruitment practices

By Brian Kreissl

Some of you will have heard about Bill C-28, the proposed federal anti-spam legislation, otherwise known as Canada’s anti-spam law (CASL). Many commentators are justifiably worried about the impact this legislation could have on organizations’ abilities to advertise and promote their products and services to their customers.

The bill has already passed through Parliament and had its royal assent. According to some reports, this legislation could be in force as early as January 2012.

The rationale behind the legislation is deterring damaging and deceitful e-mail advertising and limiting the amount of commercial spam originating from and being sent to businesses and individuals in Canada.

CASL relates to all “commercial electronic messages.” This is defined broadly, and includes conduct of a commercial nature, whether or not there is an expectation of making a profit. As well as e-mail messages, the legislation defines “commercial electronic messages” broadly and includes text, sound, voice or image messages.

Presumably — depending on an individual’s privacy settings — this might also include messages sent through social media. It does not, however, include two-way telephone conversations, faxes or voicemail messages.

The sending of a “commercial electronic message” is prohibited under the legislation unless the individual has consented to receive the message and the message identifies the sender and includes some type of unsubscribe mechanism.

There are a number of exceptions, such as messages that facilitate, complete or confirm a commercial transaction, those that provide warranty, recall, safety or security information, or factual information regarding products, subscriptions, memberships, accounts or similar information.

Messages relating to an employment relationship or related benefit plan are also exempted. However, the recipient has to be currently participating, involved or enrolled in such arrangements for the exception to apply.

Consent to receive commercial electronic messages can be express or implied. Consent is implied based on an “existing business relationship,” published electronic contact information (such as a bio on a corporate website) or in the case where the recipient has disclosed her contact information to the sender, has not indicated she does not wish to receive unsolicited messages and the message is relevant to her job.

The legislation provides for a three-year transition period that allows for implied consent in limited circumstances for existing relationships.

Potential overkill?

While spam is a growing problem, the legislation may amount to overkill. The fines and penalties for non-compliance could be huge – up to $10 million in the case of corporations and $1 million for individuals (penalties for first offences are capped at $100,000 for corporations and $10,000 for individuals).

CASL also allows individuals to take civil action against organizations for non-compliance. This would seem to present an opportunity for law firms to launch class action lawsuits against organizations.

I know spam can be annoying, but aren’t these fines and penalties a little over the top for simply sending unwanted e-mail? Surely, education would have been a better approach. After all, it’s pretty easy just to ignore and delete annoying e-mail.

Especially with ongoing worries about the economy, CASL would add to the regulatory burden already placed on Canadian businesses. Organizations will have to rethink how they sell, market to and communicate with customers, prospects and members of the public.

The potential impact on employers

While senior business leaders, as well as sales, marketing and customer service professionals need to become familiar with this legislation, there are at least a couple of reasons why HR professionals should also know about CASL and be prepared for when this legislation does come into force.

HR in many organizations will be called upon to design, develop and deliver training programs designed to familiarize frontline staff who deal with the public on a regular basis. This is particularly important because organizations will be vicariously liable for the conduct of their employees, whether or not employees are identified or proceeded against under the legislation.

Recruitment policies, practices and programs may also need to be examined, particularly with respect to the use of headhunters, employee referral programs, databases and social media. While there is an exemption for employment relationships, this would appear to apply only to existing employees.

Brian Kreissl is the managing editor of Consult Carswell. He can be reached at brian.kreissl@thomsonreuters.com. For more information, visit www.consultcarswell.com.

Brian Kreissl

Brian Kreissl is the product development manager for Thomson Reuters Legal Canada's human resources, OH&S, payroll and records retention products and solutions.
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2 Comments
  • Re: Is Employment a Commercial Activity?
    Thursday, May 31, 2012 1:58:00 PM by Brian Kreissl
    Good point. I personally think of employment as a "commercial activity." However, the PIPEDA example is a good one.

    I also think this legislation will be watered down when it finally does come into force. Time will tell if it applies to the employment relationship. However, an employment agency recruiting candidates would most likely be considered a "commercial activity."