Canada’s new anti-spam law could pose challenges for universities

Universities are grappling with how to comply with provisions of Canada’s new anti-spam law that will prohibit unsolicited electronic messages such as emails and texts.

The law, set to come into force on July 1, is meant to crack down on unwanted spam and to protect consumers from harassment, identity theft, spyware and fraud, said Industry Minister James Moore when he announced the regulations. Parliament passed the bill in 2010 and the federal government announced final regulations implementing the law this past December.

Once in force, the law will prohibit companies and other organizations from sending “commercial electronic messages” such as emails and texts without first obtaining a recipient’s consent. Even with consent, the sender must provide a way for recipients to unsubscribe to further messages. Those that break the law could face stiff penalties, up to $1 million for an individual and $10 million for corporations.

Universities had sought a blanket exemption from the legislation, arguing that a ban on all electronic messages would inhibit communication practices that are part of their core educational activities. The regulations announced in December included a limited exemption for registered charities and non-profit groups, including universities, for electronic messages sent for fundraising purposes. Bill Schaper, director of public policy and community engagement at Imagine Canada, an umbrella group that represents charities and non-profits, said the fundraising exemption was “a pretty significant move.” It makes the legislation “much less of an imposition for the charitable sector than it would have been,” he said.

But for universities, the picture may be a little different. “It’s a positive step but it doesn’t solve all our problems,” said Christine Silversides, director of legal services at York University. “Fundraising is only one of a vast array of activities that we conduct through electronic communications.” Universities also use emails to communicate with alumni, to deliver academic programs and to recruit prospective students, she noted. It isn’t clear if other exemptions and provisions of the legislation would allow for these types of electronic messages.

“This is really considered to be one of the most stringent anti-spam regimes in the world,” Ms. Silversides added. “It’s very broad and it has really drastic penalties,” and could have “significant impact” on the communication practices of universities, she said.

Other provisions of the act set to take effect in 2017 will allow consumers to take legal action against organizations that send unwanted electronic messages and could open up universities and other groups to class-action lawsuits, she noted.

However, the legislation’s primary target is businesses that use electronic messages for commercial purposes, Ms. Silversides added. Universities see their core function as academic rather than commercial. Still, “it leaves us to ponder what if any electronic messages we send are commercial in nature,” she said. A group of university legal counsels were planning to meet early in 2014 to review the regulations and discuss how they apply to educational institutions.

The bill was almost a decade in the making and has received strong support from consumer groups. The federal government created a website that consumers can use to report violations and file complaints. The act will be jointly enforced by the Canadian Radio-television and Telecommunications Commission, the Competition Bureau and the Office of the Privacy Commissioner of Canada.

Michael Geist, who holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, said in a recent blog post that the legislation was “a long overdue win for consumers” and that Canada is the last major developed country to implement anti-spam legislation. In a previous post, he dismissed concerns that schools and other non-profit groups will be hamstrung by the law. He said broad exceptions under the bill will provide them with the flexibility they need.

One provision gives organizations the use of “implied consent” to send electronic messages in some cases, including when a business relationship already exists between the sender and recipient. Under the law, an “existing relationship” has occurred when the two parties have engaged in a business transaction in the two years before a message is sent and within six months after a consumer makes an inquiry. Students making a tuition payment could be covered by this provision, Dr. Geist noted.

“There are still some grey areas,” said Christine Tausig Ford, vice-president of the Association of Universities and Colleges of Canada. Over the past year, AUCC has worked with Imagine Canada to express concerns about potential unintended consequences of the anti-spam legislation. “The regulations issued by the government in December represent a key win for universities and the charitable sector,” added Ms. Tausig Ford. “We’re working with government officials and colleagues at Imagine Canada to get some clarity, especially whether e-mails sent for student recruitment – an important aspect of universities’ academic mission – are exempt.”