The regs specify that covers people who have had “direct, voluntary two-way communications,” and who share interests, opinions and certain other factors -- unless the recipient has indicated they don’t want to receive messages from the sender.
This, Brown says, is a flexible definition that doesn’t leave loopholes for spammers.
But Geist said it is so broad that messages such as social media alerts for Facebook ‘likes’ will be exempted.
The new regs says CASL doesn’t apply to the first commercial email sent to a person through a referral – think of a new home buyer who wants to refer a real estate broker to a friend. Brown says this change will be a boon for consultants and small businesses, allowing, for example, the broker to email a potential customer. He called it a “very positive change.”
But Geist said the exemption is unnecessary. If the home buyer wants to give a referral, it should go to the friend and not the broker. Current law covers this, he said.
This exemption will “open the door” to unwanted email messages, he argues. “This particular exemption feels like a re-writing of the law.”
Other proposed changes include broadening the exemption for messages sent between organizations, and allowing telecommunications providers to install software without consent on consumer devices to "prevent activities that the telecommunications service provider reasonably believes are in contravention of an Act of Parliament and which present an imminent risk to the security of its network."
Brown disagrees with Geist that the new proposed regulations are full of loopholes. “These are reasonable allowances that are based on consultations with industry,” he said, “to allow for reasonable business practices which the law would inadvertently hamper.”
But Geist says the real issue is whether businesses should be required to get express consent from each individual it sends commercial messages to.
“There is no need for an exception if you’ve obtained consent,” he argues.
But he suspects the business community wants to avoid that “because there’s a genuine fear a lot of people will say no.”