Canada’s New Anti-Spam Law Is Both Horrifying and Stupid

Future Tense
The Citizen's Guide to the Future
July 1 2014 12:46 PM

Canada’s New Anti-Spam Law Is Both Horrifying and Stupid

90247172-computer-screen-inbox-displaying-unsolicited-emails
Fine 'em!

Photo by MIKE CLARKE/AFP/Getty Images

Junk mail is irritating. For most of us, the solution to this irritation is to use a spam filter. But starting July 1, Canadians will have another option: Take spammers to court—for millions of dollars.

Mark Joseph Stern Mark Joseph Stern

Mark Joseph Stern is a writer for Slate. He covers science, the law, and LGBTQ issues.

That’s the upshot of a new law going into effect today—Canada Day, in fact—that’s designed to protect Canadians from the apparently overwhelming and savage threat of receiving unwanted advertisements in your inbox. For now, companies, nonprofits, and charities will have to prove they obtained “implied consent” to spam you; starting in 2017, they’ll have to obtain “express consent” before emailing you an ad, requiring you to explicitly opt in to their spam. An individual who violates the law can be fined up to 1 million Canadian dollars—a company, 10 million Canadian dollars. (That’s $937,400 and $9.374 million in U.S. dollars, respectively.)*

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Based on these pricey punishments, you might think Canada is plagued by a runaway junk mail crisis, each citizen inundated daily with an endless stream of malicious spam. But there’s no specific impetus behind the stringent new law, except perhaps Canadian legislators’ startlingly deep aversion to unsolicited emails. Small businesses throughout the country—who will now be forced to overhaul their marketing strategies or risk crippling fines—are especially terrified of violating the new law. They’re also put at a striking disadvantage: The law applies only to businesses within the country, so international companies can continue to spam willy-nilly. And the act applies to many nonprofits and charities as well, sharply restricted their traditional avenues for fundraising.

Why is Canada so eager to enact a law that severely restricts advertisers’ speech and handicaps small domestic businesses and charities? Most likely, the move is part of a broader trend in Canada and Europe to shield citizens’ privacy on the relatively untamed frontier of the Internet. Europe has recently enacted deeply misguided and censorial “right to be forgotten” laws, while Germany has gone a step further, forcing a citizen to delete private, consensual nude photos of his ex-girlfriend off his own computer. Not be outdone, the Supreme Court of British Columbia asserted its authority to censor every single search engine across the globe in June, controlling the information that people in other countries have access to.

Seen in the context of this headlong rush to trample speech and expression in the name of privacy, Canada’s new spam law isn’t that surprising. It is, however, deeply stupid. Because the law applies only to Canadian companies, it will reduce spam by just about 2 percent for the typical citizen. The law might be more effective if the United States agreed to play along and censor American companies’ advertisements. But the Supreme Court has consistently held that the First Amendment protects advertisers’ rights to get their information across to potential consumers—even if nobody wants to hear what they have to say. A law so broad as to capture virtually all email advertisements in its sweep would never pass constitutional muster. (The United States does have anti-spam laws of its own, but they are, by necessity, much more narrowly tailored.)

There is a chance, of course, that Europe might adopt similar anti-spam laws, thereby drawing more companies into a kind of worldwide web of commercial censorship. But so long as the First Amendment prevents the United States from joining the spam censorship club, the laws will remain essentially toothless. That’s probably a good thing: Irksome as junk mail may be, it’s never a good idea to hand governments the tools to control what information and ideas can and can’t be sent to us. Sometimes that information is annoying and unwanted. But a vigilant spam filter is a pretty small price to pay for Internet freedom. 

*Correction, July 1, 2014: This post originally misstated the value in American dollars of the fine to a company sending spam in Canada. It is $9.374 million, not $937.4 million.

Future Tense is a partnership of SlateNew America, and Arizona State University.

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