Permission to Spam

Canada’s strict anti-spam law went into effect last Tuesday, forcing organizations -- including colleges and universities -- to obtain express consent to electronically contact people for commercial purposes or face millions of dollars in fines.

The law’s far-reaching scope caused the American Bar Association to name it the “toughest anti-spam law in the world” earlier this year, and opponents have blasted it as a costly and draconian measure to deal with an online annoyance. It applies to spam both sent from and accessed in Canada, and covers more than just email: Text messages, instant messages and posts on social media all fall under the definition of “commercial electronic messages.”

In the days leading up to July 1, Canadian citizens’ inboxes were flooded with promotions asking them to confirm that they did in fact wish to keep receiving emails. Along with making the sender easily identifiable and allowing recipients to opt out, the law requires senders to prove that they have obtained consent from each and every person on their contact lists. Sending unsolicited commercial messages could lead to a fine of up to 10 million Canadian dollars (or about $9.3 million).

For the largest organizations, those requirements mean asking millions of users to state “Yes, please contact me.”

Except for registered charities and fund-raising political parties, the law applies to virtually any sender, from penis enlargement pill peddlers and faux Nigerian princes to colleges and universities. Without any official guidelines on how the law applies to higher education, institutions will likely have to figure out how to comply with it themselves.

“The Canadian Anti-Spam Legislation (CASL) can apply to a U.S. institution that sends a ‘commercial electronic message’ to a Canadian recipient,” a spokeswoman for the Association of Universities and Colleges of Canada confirmed in an email. “Each U.S. institution will need to determine whether the messages it sends to Canadian recipients constitute ‘commercial electronic messages’ under the law.”

Many colleges and universities are only now starting that process. Ryan P. Deuel, director of media relations at St. Lawrence University in the Adirondack region close to Canada, said it was too early to say how the law would affect the institution's electronic communications.

“What I can say at the moment is that early feedback indicates that, due to St. Lawrence University's historic Canadian student population and thus significant alumni base, this is something we need to think about if we are soliciting via email people who reside in Canada,” Deuel said in an email. “And, we are learning as quickly as we can so we can advise admissions or advancement of the potential impact.”

Based on how Canadian institutions have interpreted the law, some -- but not all -- of the electronic communications on their campuses fall under the exemption for charities. The University of Toronto, which like most Canadian universities is a public institution, has determined that “electronic communications relating to its core educational activities, broadly defined, are not ‘of a commercial character,’ ” which means it is free to contact prospective students, solicit donations from alumni and advertise university events.

But Hubert Lai, university counsel at the University of British Columbia, said private and for-profit institutions in the U.S. may need to take a close look at the law. “There’s an interesting question as to whether a private university that was engaged in solicitations to support their recruitment activities would be considered a commercial practice,” he said.

UBC late last month published a six-page document to answer common questions about the law, and has for months been “triaging” different campus units to help bring them into compliance.

“For example, if we are soliciting donations for the university, there is a specific provision to allow that to occur,” Lai said. “A counterexample would be our bookstore.... If they wanted to send out 10,000 emails to people in the local area saying we’ve got a sale, that clearly is a commercial electronic message.”

There are also borderline cases. According to the FAQ, including even a “small advertisement for a commercial sponsor” in a university newsletter would make the entire newsletter a commercial message, and would therefore be covered by the law.

For now, colleges and universities are free to contact people with whom they have an existing relationship. Examples include “Customers, clients, associates, donors, supporters, volunteers or members from the past two years,” according to an informational website created by the Canadian government. By 2017, senders will be required to obtain express consent from those recipients as well.

The Canadian Chamber of Congress’ breakdown of the law adds a few more twists. Scanning badges during a trade show -- or a higher education conference, for example -- may violate the law unless attendees are explicitly informed they would be added to an email list.

If the Canadian anti-spam initiative succeeds, Lai said, other countries could end up following their lead.

“Clogging the Internet with spam is not a uniquely Canadian phenomenon,” Lai said. “It’s a global issue. I would expect that governments around the world are going to be looking harder and harder at this problem.”