Category: privacy Page 4 of 5

Because the Ottawa Citizen’s site search is such a disaster, I had difficulty in looking up the article written by Michael Geist that John Gustavson was replying to in his letter to the editor. You’d think that a search for “micheal geist” would yield something other than:

Displaying 0 — 0 of 0 results for “micheal geist” from the Ottawa Citizen

You’d be wrong though. I did eventually find the article, called “Do not think problems will be solved when do-not-call law enacted” without help from the Citizen site’s search.

I read Geist’s article, and re-read Gustavson’s reply, and have trouble understanding how the reply is any reply at all.

Gustovson describes the point of his letter to the editor in his message to me:

I was referring in my letter to the general case where a consumer has not previously withdrawn consent and a marketer can call customers even if they have registered on the DNC.

This is exactly what Geist describes as a weakness of the do-not-call list in the first paragraph of his article, and the reason he created the iOptOut system. Replaying the first paragraph of the article as a reply makes me think Gustavson hopes the remainder of the article will simply go away, or that he stopped reading at the end of the first paragraph.

After I received Gustavson’s reply to me, I was about to ask permission to post his message to me in its entirety. I was surprised to receive a message from another CMA employee requesting that I post Gustavson’s message here. I took this message as the permission I was about to request. Now that I’ve gone back and read Geist’s article, I can’t see why they wanted me to post it badly enough to ask. There’s nothing new in it, and one could even wonder if Gustavson missed the point Geist was trying to make.

Gustavson certainly did not miss the point, however. The CMA site has an area in which Member Bulletins and Briefings are posted to “keep members informed about important industry issues that may affect their businesses.” Reading the bulletins requires a members-only log-in, but until late last week, an abstract of each bulletin was posted with the bulletin titles, plainly visible without logging in. A bulletin posted the week before, titled “Doubts about privately run do-not-call service” now gives no clue as what form these doubts take. Early last week however, the abstract said that although the CMA cannot say so with any legal certainty, they do believe that members can safely ignore PIPEDA notification from customers when send by a privately run opt-out service.

Given that the CMA themselves run an opt-out service, this is an odd position to take. I do understand that the do-not-call list and Geist’s iOptOut will adversely affect the way their members do business. I would think the enthusiasm shown for these services would perhaps enlighten them about how strongly the public dislike telemarketing calls.

What I can promise is my delivering a complaint to the Privacy Commissioner of Canada, should I be contacted by an organization I’ve directed to not contact me using iOptOut.

Let’s not even get into the logic behind an organization proving they are happy to ignore my plainly stated wishes as a prelude to trying to sell me something.

I received a response from Mr. Gustavson twenty minutes after sending my query. When I saw the address, I assumed it was an auto-responder. Here’s his answer:

From: John Gustavson
Subject: FW: Regarding the letter to the editor
To: Rick Pali
Date: Fri, 11 Apr 2008 13:38:12 ‑0400

Dear Mr. Pali,

Thank you very much for your e‑mail. You are absolutely correct. Once a consumer has notified a company or organization not to call them then the organization must comply, even if exempt from the DNC. I was referring in my letter to the general case where a consumer has not previously withdrawn consent and a marketer can call customers even if they have registered on the DNC. Until reading your e‑mail it hadn’t occurred to me that my letter might be interpreted as asserting a right to call after consent to do so had been withdrawn. I will be more careful in my phrasing in future and thank you for drawing this to my attention.

Sincerely,

John Gustavson
President and Chief Executive Officer
Canadian Marketing Association
1 Concorde Gate, Suite 607, Don Mills, Ontario M3C 3N6
(416) 644‑3756 | www.the-cma.org

I have some thoughts about this, but they’ll have to wait until later.

From: “Rick Pali” <rpali@alienshore.com>
Subject: Regarding the letter to the editor
To: <info@the-cma.org>
Date: Fri, 11 Apr 2008 13:18:15 ‑0400

Mr. Gustavson,

I read your letter to the editor in the Ottawa Citizen with great interest. There are a few points you did not make clear, however. You state,

When the national list goes into effect this fall, organizations that you have chosen to do business with will still be able to call you — once.

They must also respect any request you make not to call you again pitching goods and services.

I admit that I am not a lawyer, nor am I particular versed in the intricacies of the law. At the same time however, my reading of the Personal Information Protection and Electronic Documents Act seems to make no allowance for the ‘again’ you use in the quotation above.

Section 4.3.1 of the act states:

Consent is required for the collection of personal information and the subsequent use or disclosure of this information.

It seems the word ‘subsequent’ in this section refers to the use of the personal information being after its collection, which makes sense. It can’t work the other way around.

Section 4.3.8 of the act states:

An individual may withdraw consent at any time, subject to legal or contractual restrictions and reasonable notice. The organization shall inform the individual of the implications of such withdrawal.

I read “An individual may withdraw consent at any time” as being unambiguous. If I contact a business before they contact me and withdraw permission to use my phone number, my actions clearly fall under the definition of “at any time.”

I’ve been unable to find anything in the Personal Information Protection and Electronic Documents Act corresponding to your claim. Either your letter ignored the act entirely, or you know something I don’t. If it’s the latter, could I trouble you for a citation (or citations) to help me locate this information? I’m very curious because it seems to directly contradict the Personal Information Protection and Electronic Documents Act.

Thank you for your time and attention.

Rick.

This is going to get interesting. John Gustavson, President and chief executive officer of the Canadian Marketing Association, has a letter to the editor in the Ottawa Citizen today. He says:

Despite columnist Michael Geist’s assertion to the contrary, the Canadian Marketing Association is fully in favour of a national do-not-call list and first asked the federal government to implement one in 2001.

When the national list goes into effect this fall, organizations that you have chosen to do business with will still be able to call you — once.

They must also respect any request you make not to call you again pitching goods and services. This strikes a reasonable balance between consumer choice and protecting the jobs of 160,000 Canadians employed in the industry. It is also a model that has worked well in the United States with high consumer satisfaction and support for their do-not-call registry.

John Gustavson, Don Mills
President and chief executive officer
Canadian Marketing Association

It is true that the do-not-call list does indeed allow organizations that you’ve had business with in the last 18 months to call you. If they do so, you certainly are entitled to inform them that you do not wish to be called again. They must honour your request. This is all true.

What’s squirrelly about it is he makes no allowance for the Personal Information Protection and Electronic Documents Act. It appears Gustavson is being selective in the rules he cites because I can find no reference allowing an organization to call you for the first time if you’ve already withdrawn permission.