Now we can get down to the precise matter at hand…
· Meaning of commercial electronic message
(2) For the purposes of this Act, a commercial electronic message is an electronic message that, having regard to the content of the message, the hyperlinks in the message to content on a website or other database, or the contact information contained in the message, it would be reasonable to conclude has as its purpose, or one of its purposes, to encourage participation in a commercial activity, including an electronic message that
- (a) offers to purchase, sell, barter or lease a product, goods, a service, land or an interest or right in land;
- (b) offers to provide a business, investment or gaming opportunity;
- (c) advertises or promotes anything referred to in paragraph (a) or (b); or
- (d) promotes a person, including the public image of a person, as being a person who does anything referred to in any of paragraphs (a) to (c), or who intends to do so.
· Marginal note: Other commercial electronic message
(3) An electronic message that contains a request for consent to send a message described in subsection (2) is also considered to be a commercial electronic message.
· Marginal note: Exclusion
(4) An electronic message described in subsection (2) or (3) that is sent for the purposes of law enforcement, public safety, the protection of Canada, the conduct of international affairs or the defence of Canada is not considered to be a commercial electronic message.
Now, reading the above “subsection 2” of CASL, I am compelled to wear two hats as I try to interpret it for my own purposes. I can do this without any internal conflict, because I have long-since tried to better align my business and my personal interests. You see, on the one hand, I was reading the above with a view towards understanding how my email messages should be communicated, in order that they cannot be defined as “commercial electronic messages” for the purposes of this law. I read it with a view towards the careful, legal skirting of this law. Then again, on the other hand, I do realize that I probably do need to know how to send a proper “commercial electronic message” so that I can pursue my very legitimate business interests while remaining within the law. So, very definitely, I also read this law with a view towards compliance.
Using my ‘bi-focal reading lenses’ to digest and comprehend CASL, I couldn’t help but recognize a few interesting things…
1. The definition of what constitutes a “commercial electronic message” (henceforth a CEM) is in fact, quite subjective. The determination is made “having regard to the content of the message, the hyperlinks in the message to content on a website or other database, or the contact information contained in the message”. If that’s not subjective enough for you, the paragraph in question goes on to estimate that given these assessments “it would be reasonable to conclude has as its purpose, or one of its purposes, to encourage participation in a commercial activity”, which is plainly subjective as that assessment takes place between the ears of the assessor, i.e. ‘the Commission’. In order to counter this blatant subjectivity, the subparagraphs attempt to offer a little more specificity, and so set-out “including an electronic message that…. (a) offers to purchase, sell, barter or lease a product, goods, a service, land or an interest or right in land”.
By my (non-lawyer) reading, if my email does not include any offer to buy, sell, barter or lease anything or any parcel of land; I can sidestep pretty much the entirety of this legislation, on grounds that none of it applies, under sub-paragraph ‘a’. Since this sub-paragraph ‘a’ is fundamental to the casus belli that motivated the angry penning of CASL; if this sub-paragraph ‘a’ does not apply to my CEM, then it’s not “SPAM”, by definition.
2. Similarly, as per sub-paragraph ‘b’, the CASL covers “an electronic message that… offers to provide a business, investment or gaming opportunity”. For my purposes, I can disregard the “investment or gaming opportunity” bit, because that’s got absolutely nothing at all to do with what I do and whatever I (think I may) plan to conceivably do. As for that “business” part – which is ENORMOUSLY GENERIC and entirely NON-SPECIFIC, not to mention TANTAMOUNT TO OVERREACH which in truth, runs entirely counter to the stated purpose, not to mention the very name of this piece of legislation – the entrepreneur in me is compelled to parse these words very, very carefully. So, let’s break it down!
For my purposes, this sub-paragraph ‘b’ restricts “offers to provide a business…. opportunity”. Not only is this subjective, it is also prospective, i.e. decidedly *not* definitive. As such, it is inherently vague, and will probably be unenforceable, in and of itself. However, this isn’t the crack in this facet of the façade that is the widest. That widest crack is opened by the phrase “offers to provide”. This wording of “offers to provide” opens the possibility of a direct hole through CASL: If my email communications amount to straight-up *gifts* — not the offer of a gift, not the promise of a gift, and not a gift in exchange for anything else. Not a gift to be bought, nor sold, bartered or leased; whether it be product, good, service, any parcel of land or any interest or right in land. Rather, if my emails amount to a straight-up gift, delivered in the email itself, these would *arguably* not fall under the restrictions imposed by sub-paragraph ‘b’.
3. Sub-paragraph ‘c’ further stipulates “advertises or promotes anything referred to in paragraph ‘a’ or ‘b’”. This essentially means that if neither ‘a’ nor ‘b’ applies, then neither can ‘c’ in that it neither amounts to either ‘a’ or ‘b’; nor does it advertise or promote anything, whether ‘a’ or ‘b’ or anything else, for that matter. By steering-clear of advertising or promotional messaging, and ensuring the enclosed gift is a gift (and that it is not presented as an offer, not sold or bought, bartered, or leased), an email communication for my purposes can remain *within the law*, no matter how ridiculously subjective is CASL.
The fact remains, nothing in CASL criminalizes gift-giving. An email bearing a gift is – in my non-lawyer opinion – less likely to offend even the immensely subjective sensibilities of CASL.
4. Sub-paragraph ‘d’ takes yet one more step down the direction of its immediate predecessor. In brief, I am compelled by my entrepreneurial spirit to conclude that so long as my email communications refrain from promoting a person, especially not the “public image of a person” as being a person who does anything referred to in any of paragraphs ‘a’ through ‘c’, or who intends to do so….. well then, I think I should be in the clear.
As an added topper, section ‘3’ clarifies (for those who were wondering) “An electronic message that contains a request for consent to send a message described in subsection (2) is also considered to be a commercial electronic message.”
Almost as if to hold-up a fig leaf of moderation, with section ‘4’ our legislators seem to have gone through the motions of restricting their powers; by exempting electronic messages “sent for the purposes of law enforcement, public safety, the protection of Canada, the conduct of international affairs or the defence of Canada”.
In sum, my planned emails can be carefully crafted to avoid definition as CEMs, given my exercise of due diligence as described herein.
(On a related topic: Talk to me about ‘GOVERNMENT OVERREACH’ and being entrepreneurial under a ‘HOSTILE LEGISLATIVE ENVIRONMENT’ imposed by a supposedly pro-business government in a country that is nominally business-friendly. NB: Soon after this law was passed, the Conservative government was replaced by a Liberal one, which failed to live-up to it’s promise to “overhaul” CASL, only going so far as to repeal the ‘private right of action’ provisions, that had originally empowered people to sue their spammers directly.)