Brian Bowman – On the Cutting Edge

I’d like to dispel a misconception about Bill C-27, An Act to Promote the Efficiency and Adaptability of the Canadian Economy by Regulating Certain Activities that Discourage Reliance on Electronic Means of Carrying Out Commercial Activities (the “Anti-Spam Bill”), which is working its way right now through the Parliamentary Committee process. When passed, the Anti-Spam Bill will provide much-needed relief from insidious electronic Spam like phishing and spyware. There is, however, an unfortunate misconception that the Anti-Spam Bill might create “loopholes” for spammers.

As originally drafted, the Anti-Spam Bill didn’t clearly define which types of electronic communication would be subject to regulation. While spyware and phishing would clearly be outlawed, questions arose as to whether other decidedly non-Spam and legitimate activities could possibly be caught within the scope of regulation. That’s because the Anti-Spam Bill was drafted to regulate “commercial activity”. Unfortunately, it didn’t clearly explain what this term meant. Here’s where the misconception comes in.

Some think “marketing research” is the same thing as telemarketing. In reality, the two activities have very little in common. Legitimate marketing research organizations do not try to sell products or services (in fact, if they are members of Canada’s Marketing Research and Intelligence Association (the “MRIA”), they are bound by a professional code of conduct which expressly prohibits such activities). Maybe you’ve heard of “mugging” (marketing under the guise of research) and “sugging” (selling under the guise of research). Let’s be clear: legitimate marketing research organizations do neither. If someone is trying to sell you something under the guise of a survey, they are not conducting legitimate marketing research. Nevertheless, comparisons of online marketing research to telemarketing abound, even though the Anti-Spam Bill will regulate online activity, not telephone calls.

Polls tell us that Canadians support the Anti-Spam Bill. How do we know this?  Because members of the MRIA were able to conduct marketing research, quite likely, using an online survey. These surveys are fuel for polls that provide valuable and timely information to Canadian decision-makers. What’s more, online surveys are quick and convenient for participants. I have the privilege of serving as the MRIA’s legal counsel, and am also a member, so I ‘ve seen marketing research activities first hand and know the value they provide to Canadians.

My understanding and reading of the Anti-Spam Bill is that online marketing research is not intended to be caught by the law. But that’s the problem: given the ambiguity of the Anti-Spam Bill, it’s impossible to definitively say that online marketing research would not be regulated. Ambiguity leads to uncertainty, which is good for no one. The Personal Information Protection and Electronic Documents Act, for instance, has been criticized for being far too subjective. We should learn from this experience and cut as much ambiguity as possible from the Anti-Spam Bill. That’s why the Anti-Spam Bill should be clarified to ensure it’s clear that it won’t apply to online marketing research. Doing so would not create loopholes, as some have argued; it would simply ensure that online marketing research is not lumped into the annoying Spam that everyone wants to ban. Bringing clarity to the Anti-Spam Bill would also be consistent with the actions of other countries that have already created specific exemptions for marketing research in their anti-spam laws. 

The bottom line is that no one likes Spam, except perhaps for these guys from Monty Python. Parliament still has an opportunity to clarify misconceptions and introduce a strong, effective law. Marketing research isn’t Spam, however, and the Anti-Spam Bill should clearly reflect this fact.